Delhi District Court
Cbi vs Ram Karan on 21 April, 2022
IN THE COURT OF ANIL KUMAR SISODIA
SPECIAL JUDGE (PC ACT)(CBI)-07: ROUSE AVENUE
COURTS: DELHI
CNR No. DLCT11-001461-2019
CC No. 370/2019
RC No. 29(A)/2017 CBI/ACB/N.Delhi.
CBI Versus RAM KARAN
S/o late Sh. Puran Chand
R/o 7772/1, KP Quarters,
Behind Birla Mills,
Shakti Nagar, Delhi 110007
Date of Institution : 17.01.2018
Judgment reserved on : 29.03.2022
Date of Judgment : 21.04.2022
Memo of Appearance:
Sh. A.K. Kushwaha, learned Sr.PP for CBI.
Sh. H.K. Sharma, Ld. Counsel for accused.
JUDGMENT
PROSECUTION VERSION CC No. 370/2019 CBI Vs. Ram Karan Page 1 of 88 1.0 The present case was registered on the basis of a written complaint dated 21.07.2017 (Ex. PW 5/A) of Sh. Nivesh Aggarwal (PW-
5) and verification (Ex. PW 5/B) conducted by CBI against accused Ram Karan working as UDC LAB (Res.) in DDA.
1.1 As per complaint, accused was demanding bribe from the complainant in lieu of clearing his file pending in concerned section of DDA Vikas Sadan and accused told the complainant that he had paid Rs. 5000/- to his senior officer to get his file cleared and also asked the complainant to come on 21.07.2017 for giving bribe otherwise to face consequences. Accused demanded bribe of Rs. 12,500/- and since complainant did not want to give bribe, he lodged complaint with CBI. The verification of the said complaint was conducted by CBI which revealed demand of bribe of Rs. 20,000/- by accused. Further verification was also conducted on 28.07.2017 and thereafter case FIR was registered on 29.07.2017 under Section 7 of P.C. Act, 1988 against accused. On 29.07.2017 a trap was laid on accused and he was caught red handed while demanding and accepting bribe amount of Rs. 15,000/- from the complainant.
1.2. The investigation revealed that on 21.07.2017 verification was conducted by verifying officer Shitanshu Sharma (PW-15) in the presence of independent witness Pritpal Singh Talwar (PW-10) wherein accused demanded Rs. 20,000/- to clear his file and asked the complainant to make indemnity bond first and thereafter contact him and CC No. 370/2019 CBI Vs. Ram Karan Page 2 of 88 a verification memo (Ex. PW 5/B) was prepared.
1.3 The investigation further revealed that complainant informed verifying officer that he got the Indemnity Bond prepared and submitted the same on 25.07.2017 in DDA office and informed the accused on 26.07.2017 and further complainant informed that accused called from his mobile phone on 28.07.2017 at around 8.30 AM on his mobile phone asking him to come to Karkardooma Court Metro Station. However, he denied and told accused that he has to go to Ajmer whereupon accused asked him to send someone to which complainant replied that nobody was at his home and the said conversation was recorded by the complainant in his mobile phone and a further verification memo (Ex.PW15/A) was also prepared by the verifying officer.
1.4 Investigation revealed that after registration of case FIR, same was marked to Insp. Saminder Singh Gill (Trap Laying Officer-TLO) for laying a trap and a trap team consisting of CBI officials and independent witnesses Ritesh Kumar (PW11) and Manesh Kumar Kanojia (PW-13) was constituted. TLO took into possession sealed memory card (Ex.Q-1) used in the verification proceedings. The complainant could arrange only Rs. 15,000/- (consisting of 7 GC Notes of Rs. 2000/- and 2 GC Notes of Rs. 500/- denomination) to give to the accused against the demand of bribe of Rs. 20,000/- by accused. The distinctive numbers of the same were noted in the handing over memo dated 29.07.2017 which were treated with phenolphthalein powder by Insp. Harnam Singh who also explained and demonstrated the purpose of treating the notes with CC No. 370/2019 CBI Vs. Ram Karan Page 3 of 88 the said chemical and result of touching the same with the sodium carbonate and water solution by getting the same touched by independent witness Manesh Kumar Kanojia and thereafter all such notes were treated with said powder and were put in the left side shirt pocket of the complainant by Manesh Kumar Kanojia. Complainant was directed not to touch the same and to hand over the same to accused on his specific demand or on his specific direction to other person.
1.5 The investigation revealed that after pre-trap proceedings trap team including witnesses left the CBI office at about 11.20 am and a call was received from the accused by the complainant and complainant informed accused that he was coming to his office within half an hour and the said call was simultaneously recorded in the DVR by keeping mobile phone of complainant on speaker mode and DVR on recording mode.
1.6 The investigation revealed that after reaching near DDA office, DVR was given to complainant in switched on recording mode kept inside the shirt in the pocket of his baniyan and independent witness Manesh Kumar Kanojia was directed to accompany the complainant.
1.7 The investigation has further revealed that on coming out of his office, accused took the complainant and independent witness to Kashmere Market, INA and on the way asked the complainant about the copy of Aadhaar card of his father and took them to a Tea Stall where accused asked the complainant about the bribe amount through gesture of his hand and accepted the money from the complainant by saying "IS CC No. 370/2019 CBI Vs. Ram Karan Page 4 of 88 KAGAJ MAI RAKH DE JO LAYA HAI TU" in a photocopy of Aadhaar Card which was carried by the complainant and thereafter complainant took out the tainted bribe amount from the left pocket of his wearing shirt and on the asking of accused, complainant counted the said tainted bribe amount Rs. 15,000/- and wrapped the amount in photo copy of Aadhaar card and handed over the same to the accused who accepted it and kept in his green bag which he was carrying and thereafter complainant also gave a missed call on the mobile phone of the TLO.
1.8 The investigation has further revealed that all trap team members rushed towards the accused and complainant, where DVR was taken from the complainant and accused was challenged for accepting the bribe which revealed that accused had not touched the tainted bribe amount with his hands and accepted it after the treated currency notes were wrapped in photo copy of Aadhaar card which was recovered from the green bag of the accused kept above the black bag which was lying in the green bag of the accused. The wash of the said black bag was taken which turned pink and the same was sealed in a glass bottle and the bags were also seized and after tallying the bribe amount with the handing over memo same was also sealed along with copy of Aadhaar card. A site plan of the spot was also prepared.
1.9 The investigation has further revealed that CBI team went to the office of DDA and seized the file of the complainant vide a seizure memo and thereafter trap team left for CBI office where accused was arrested vide a arrest-cum-personal search memo. DVR was heard and sample voice of accused was taken in memory card S-1. Memory card CC No. 370/2019 CBI Vs. Ram Karan Page 5 of 88 used in the trap proceedings was also seized and marked as Q-2 and DVR was seized in envelope marked as DVR.
1.10. The investigation has further revealed that memory card of the mobile phone of the complainant Q-3 was also seized vide a memo along with certificate under Section 65 of Evidence Act. Bag wash bottle was also seized and taken into possession and the brass seal used in trap proceedings was handed over to PW-13 Manesh Kumar Kanojia and detailed recovery proceedings were recorded in the Recovery Memo.
1.11. The investigation has further revealed that during investigation recording of the conversation revealed demand of bribe by the accused and transcription of the same was prepared in the presence of independent witnesses and the complainant. During investigation recorded conversations and bag wash were sent to CFSL for opinion. Investigation further revealed that there was no outstanding dues on the part of the complainant on 21.07.2017. CDR details, CAF of the phones of accused and complainant were collected by the I.O. Investigation revealed that work of conversion of property from lease hold to free hold was pending with DDA and area of Yamuna Vihar was allocated to the accused.
1.12 During the course of investigation, sanction for prosecution of accused from DDA was obtained from the competent authority, the charge sheet was filed on 17.01.2018 under Section 7 and 13 (2) read with 13 (1) (d) of P.C. Act, 1988.
CC No. 370/2019 CBI Vs. Ram Karan Page 6 of 88COGNIZANCE AND CHARGE
2. Cognizance was taken by the court on 25.05.2018 and the accused was directed to be summoned.
3. Arguments on charge were heard and vide order dated 05.09.2018, charge for commission of offences under Sections 7 of Prevention of Corruption Act, 1988 and 13(2) r/w Section 13(1)(d) Prevention of Corruption Act, 1988 was directed to be framed against the accused. Formal charge was framed against the accused u/s 7 of P.C. Act and Section 13 (2) r/w Section 13(1)(d) of PC Act, 1988 to which accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. Prosecution has examined 16 witnesses in support of its case. These witnesses can be broadly classified as under:-
Sr. Name of the Role of witness Documents exhibited No. Witness Witness from Mobile Companies.
PW-1 Raj Kumar To prove that mobile Ex. PW 1/A (D-24)
1. Sharma from number 9968313063 Ex. PW1/B (part of MTNL was subscribed by D-24) accused Ram Karan.
2 PW-3 Rama To prove the CDR, Cell Ex. PW 3/A (D-23)
Shankar Yadav ID Chart along with
from MTNL certificate u/s 65-B
Indian Evidence Act in
respect of mobile
CC No. 370/2019 CBI Vs. Ram Karan Page 7 of 88
number 9968313063
3 PW-4 Surender To prove the CDR, Ex. PW 4/A (D-25)
Kumar, Nodal CAF, Cell ID Chart and
Officer, Bharti certificate u/s 65-B
Airtel Evidence Act in respect
of mobile number
9971745099 belonging
to Nivesh Aggarwal
Sanctioning Authority/DDA officials
4 PW-2 Uday Pratap To prove the sanction Ex. PW 2/A (D-26)
Singh, Retd. Vice order against accused
Chairman, DDA Ram Karan
5 PW-8 Narender To prove the files Ex. PW 8/A seizure
Singh Bhati, Assist. seized by the IO during memo.
Section Officer, office search of the Ex. PW 8/B office
DDA office of accused order
Ex. PW 8/C DDA
file.
6. PW-12 Laxmi To prove that accused Ex. PW 8/C (DDA
Narain, Asstt. was working in LAB file D-8(iii)
Director, DDA Residential Section Ex. PW 12/A page
DDA as UDC and was signed by accused.
custodian of files. Ex. PW 12/B to 12/H
documents contained
in file D8(iii)
Complainant
7 PW-5 Nivesh To prove his complaint Ex. PW 5/A (D-1)
Aggarwal and proceedings of Complaint
(complainant) verification memo, trap Ex. PW 5/B(D-
proceeding, arrest of the 2)Verification Memo
accused etc Ex. PW 5/C (D-4)
FIR
Ex.PW 5/D (D-6)
Recovery Memo
Ex. PW 5/E (D-7)
Site Plan
Ex. PW 5/F (D-10)
CC No. 370/2019 CBI Vs. Ram Karan Page 8 of 88
Sealing Memo of
Memory Card of
complainant
Ex. PW 5/G (D-11)
65B Certificate
Ex. PW 5/H (D-15)
Rough Transcription
Ex. PW 5/H-1 (D-5)
Handing over memo
Ex. PW 5/H-2 (D-13
& 14) transcription
memo &
conversation memo
Ex. PW 5/J (Q-1)
memory card), PW
5/K and 5/L (paper
cover & cover of SD
Card)
Ex. PW 5/M (Colly.)
(Memory Card Q-3),
Ex. PW 5/N (Colly.)
envelopes.
Ex. PW 5/O
application for
conversion (part of
D-8(iii) Ex. PW 8/C
file.
Mark PW 5/P identity
bond.(part of D-8(iii)
Ex. PW 8/C file.
CFSL Experts.
8 PW-6 V.B. To prove the chemical Ex. PW 6/A (D-20)
Ramteke, Principal examination report letter dt. 23.10.2017
Scientific Officer, dated 30.10.2017 Ex. PW 6/B (D-21)
CFSL Chemical
examination report
Ex.PW 6/C (part of
D-21) letter from
CFSL
CC No. 370/2019 CBI Vs. Ram Karan Page 9 of 88
Ex. PW 6/Art.-1
Bottle.
Ex. PW 6/Art.-2
envelope in which
Ex. PW 6/Art.-3
cloth wrapper was
kept
9 PW-7 S. Ingarsal, To prove various Ex. PW 7/A (D-16)
Principal Scientific letters/correspondence letter from CBI for
Officer (Photo between SP CBI and preparing copies of
Division), CFSL CFSL Q-1 to Q-3, S-1.
Ex. PW 7/B (part of
D-17) letter for
collecting copies.
Ex. PW 7/C (D-18)
for one more copy of
SD Card
Ex. PW 7/D (D-19)
letter for collecting
copies.
10 PW-14 Subrat To prove his forensic Ex. PW 14/A copy of
Kumar Choudhary, voice examination letter receiving the
Sr. Scientific report dated 06.04.2018 exhibits in CFSL
Officer (Physics) (copy of D-22)
CFSL Ex. PW 14/B (D-28)
CFSL report.
Ex. PW 14/C to 14/L
(letters addressed to
CBI and envelopes
containing exhibits
having initialed by
him.
Ex. PW 14/Art.1
(DVR.)
Independent witnesses
11 PW-9 Mukesh To prove the demand of
Sharma, bribe made by accused
(independent in his presence
CC No. 370/2019 CBI Vs. Ram Karan Page 10 of 88
witness)
12 PW-10 Pritpal To prove the verification Ex. PW 10/Art.1
Singh Talwar proceeding conducted Brass seal
by CBI in his presence
13 PW-11 Ritesh To prove the trap Ex. PW 11/A (D-12)
Kumar, Inspector proceedings conducted specimen voice
GST by CBI against the recording memo.
accused Ex. PW 11/B (D-27)
Arrest cum personal
search memo
Ex. PW 11/C
envelope containing
tainted currency Ex.
PW 11/D (colly.)
Ex. PW 11/E copy of
Aadhaar card.
Ex. PW 11/F cloth
parcel containing
bags, i.e. Ex. PW PW
11/F-1 (green bag)
Ex. PW 11/F-2 (black
bag.
Ex. PW 11/F-3 in
which documents,
currency notes and
articles were Ex. PW
11/F-3.
Ex. PW 11/G
envelope containing
memory Card Q-2
(Ex. PW 11/H).
Ex. PW 11/I envelope
containing memory
card S-1 Ex. PW
11/J.
14 PW-13 Manesh To prove the trap Ex. PW 13/Art.1
Kumar Kanojia proceedings conducted (brass seal)
by the CBI against the
accused.
CC No. 370/2019 CBI Vs. Ram Karan Page 11 of 88
CBI Officials
15 PW-15 Inspector To prove the verification Ex. PW 15/A (D-3)
Shitanshu Sharma, proceedings conducted further verification CBI by him on the complaint memo.
given by complainant Nivesh Aggarwal and trap proceeding conducted by TLO in his presence.
16. PW-16 Inspector To prove the trap Saminder Singh proceedings, arrest of Gill, CBI the accused and seizure of documents 17 PW-17 Inspector To prove the Ex. PW 17/A (D-16) Ajay Kumar Singh, investigation conducted letter authorizing CBI by him in the case deposit of micro SD cards in CFSL.
Ex. PW 17/B (D-17) letter authorizing to collect micro SD cards and copies from CFSL Ex. PW 17/C (D-18) letter authorizing deposit of micro SD cards in CFSL for another copy.
Ex. PW 17/D (D-19) letter authorizing to collect micro SD cards and copies from CFSL.
Ex. PW 17/E (D-21) authorizing to collect report and exhibits from CFSL.
Ex. PW 17/F (PW 14/A) (D-22) letter vide which Q-1 to Q-
CC No. 370/2019 CBI Vs. Ram Karan Page 12 of 883 and S-1, DVR were sent to CFSL.
Ex. PW 17/G (D-26)
vide this letter
sanction for
prosecution was
received.
Thereafter, PE was closed.
Statement of Accused & Defence Evidence
5. In the statement recorded u/s 313 Cr.P.C accused denied the in- criminating evidence against him and stated that since the complainant and his father did not complete the formalities relating to conversion of their property from lease hold to free hold and they attributed the delay on the part of the DDA officials and since he was the lowest ranking offi- cer dealing with the file, complainant had animosity towards him specifically and towards officials of DDA in general , therefore, he lodged the present false case against him. During court deposition, he had learnt that repeatedly CBI officials, attempted to apprehend him but failed on all such occasions inclusive of the date 21.7.2017, the day when they projected verification was being conducted, therefore, they also had animosity towards him. The so called independent witnesses, are hand- picked witnesses who are government servants, therefore, deposed falsely at the instance and under duress of CBI. The accused did not pre- fer to examine any witnesses in his defence.
RIVAL CONTENTIONS 6.0 After completion of evidence by the parties, I have heard Sh. A. K. CC No. 370/2019 CBI Vs. Ram Karan Page 13 of 88 Kushwaha, Ld. Sr. PP for CBI and Sh. H.K. Sharma, Ld. Counsel for the accused at length. I have also perused the written submissions filed by CBI as well as accused and have carefully gone through the records.
ARGUMENTS ON BEHALF OF PROSECUTION 6.1 Ld. Sr. PP for CBI has argued that the prosecution has established its case beyond reasonable doubts. It has been argued that there is direct evidence of the complainant PW5 Nivesh Aggarwal to prove the guilt of the accused which has been duly corroborated by the independent witnesses namely PW-10 Pritpal Singh, PW-11 Ritesh Kumar and PW-13 Manesh Kumar Kanojia. It was argued that accused had demanded Rs. 20,000/- from the complainant for the purpose of converting the lease hold property of the father of the complainant bearing no. C-7/194, Yamuna Vihar into freehold property. He argued that the accused had also informed the complainant that he had already given ₹5,000/- to his senior officials for clearing the file of the complainant. The complainant filed a complaint dated 21.07.2017 Ex.PW5/A along with enclosures marked as PW-5/X (colly) with the CBI. The complaint was marked to PW-15 Shitanshu Sharma for verification on the same day. PW-15 summoned PW-10 Pritpal Singh and introduced with the complainant and also showed him the complaint. PW-15 arranged a DVR, Micro SD card and brass seal and recorded the introductory voice of the independent witness Pritpal Singh in the Micro SD card through DVR. Thereafter, complainant was asked to make a call on the mobile phone of the accused to ascertain his whereabouts. However, the calls could not connect and it was decided to go to the office of the accused for CC No. 370/2019 CBI Vs. Ram Karan Page 14 of 88 conducting verification proceedings. It was further argued that PW-15 along with complainant and independent witness reached DDA office and complainant made a call to the accused which was replied by him. The DVR was given to the complainant in recording mode and independent witness was directed to over hear the conversation between the accused and complainant. Ld. Sr. PP has further submitted that after sometime accused came out of his office with some files and he had some conversation with complainant and thereafter took the complainant in a rickshaw along with him. Independent witness tried to follow the complainant but could not do so. After sometime the complainant returned and narrated the incident to PW-15. PW-15 returned to CBI office along with complainant and independent witness and heard the recorded conversation which corroborated the version of the complainant. The verification was kept open by PW-15. On 28.07.2017 complainant informed PW-15 on telephone that accused had asked him to come to Karkardooma Metro Station and also hinted him to bring the bribe amount and he had recorded the conversation with the accused in his mobile phone. PW-15 directed the complainant to reach CBI office on 29.07.2017 along with the demanded bribe amount. PW-15 also prepared the verification memo Ex. PW-5/B dated 21.07.2017 (D-2) and further verification memo Ex. PW-15/A dated 28.07.2017 (D-3).
6.2 Ld. Sr. PP further argued that PW-15 Inspector Shitanshu Sharma recommended for registration for FIR and accordingly FIR Ex.5/C (D-4) was registered and it was marked to PW16 Inspector Saminder Singh Gill. Inspector Saminder Singh Gill prepared a team for laying trap on the accused. PW5 Nivesh Aggarwal produced ₹15,000/- to be given as CC No. 370/2019 CBI Vs. Ram Karan Page 15 of 88 bribe. The numbers of the notes were recorded and Inspector Harnam Singh gave practical demonstration of use of phenolphthalein powder and its chemical reaction with Sodium Carbonate solution, thereafter, currency notes were treated with phenolphthalein powder and kept in the pocket of the shirt of the complainant. PW-13 Manesh Kumar Kanojia was asked to act as shadow witness. Complainant received a call from the accused on him mobile phone while the trap team was leaving the CBI office. After reaching the spot, TLO gave DVR to the complainant in recording mode and the complainant and shadow witness stood at the gate of DDA office and other members took their position nearby. After sometime accused came out of the DDA office carrying green bag and started walking towards INA market along with the complainant and independent witness. They sat at a Tea Stall in Kashmere Market and after some conversation complainant took out the bribe amount and kept it in the copy of aadhar card after counting the same. The accused accepted the bribe amount and kept the same in his green bag. The complainant also gave missed call on the mobile phone of TLO. The CBI team apprehended the accused and the complainant narrated to CBI team about the entire incident. The bribe money was recovered by PW- 11 Ritesh Kumar from the green bag of the accused on the instruction of TLO PW16 Saminder Singh Gill. The wash of the black bag on which the bribe money was kept, was taken by the CBI team. The bribe money was tallied with the handing over memo Ex. PW-5/H-1 and was sealed. Rough site plan of the spot Ex.PW5/E was also prepared. The bag wash was sealed in a bottle. Thereafter, CBI team reached the office of the accused and seized the relevant files and office order. Thereafter, the CBI team came back to the office and accused was arrested vide arrest-
CC No. 370/2019 CBI Vs. Ram Karan Page 16 of 88cum-personal search memo Ex. PW-11/B (D-27). The spot conversation was heard in the presence of independent witnesses and the memory card was sealed. Thereafter, specimen voice of accused was recorded in another memory card in the presence of independent witnesses and the DVR and the memory card was sealed. Recovery memo Ex. PW-5/D (D-6) was prepared and the seal was handed over to PW-13 Manesh Kumar Kanojia.
6.3 Ld. Sr. PP further argued that further investigation was handed over to PW-17 Inspector Ajay Kumar Singh who collected the CAF and CDR of the mobile phone of complainant and accused. The exhibits and memory cards were sent to CFSL for examination. The chemical examination report and voice examination report regarding the bag wash and voice recordings were also obtained and the same have been proved by experts from CFSL namely PW6 V.B. Ramteke and PW-14 Subrat Kumar Chaudhary. Ld. Sr. PP also submitted that four copies of voice recordings were also got prepared by the IO which have been proved by PW-7 S. Ingarsal. It was argued that the transcription of the voice recordings were got prepared by the IO in the presence of the independent witnesses which has been proved as Ex. PW-5/H-2 (colly).
6.4 It was argued that in order to prove its case, prosecution has examined 17 witnesses including the complainant, independent witnesses, CBI officials and experts from CFSL besides the officials of DDA. It was argued that PW5 Nivesh Aggarwal has reiterated the complaint filed by him and has also supported the case of the prosecution in all material particulars. Although, he was cross examined by the CBI CC No. 370/2019 CBI Vs. Ram Karan Page 17 of 88 as he did not depose the complete facts in his examination in chief but in his cross examination by Ld. Sr. PP, he has fully supported the case of the prosecution. It was also argued that complainant has proved the demand and acceptance of bribe by the accused and his testimony has remained unshaken in the cross examination. It was also argued that PW10 Pritpal Singh has also corroborated the version given by the complainant during verification proceedings. PW-11 Ritesh Kumar and PW-13 Manesh Kumar Kanojia have proved the entire proceedings conducted by the raiding party. They have also identified the currency notes Ex.PW-11/D (colly), copy of the aadhar card of the father of the complainant Ex.PW-11/E, the green bag Ex. PW-11/F-1 and the black bag Ex. PW-11/F-2, handing over memo, recovery memo, arrest memo, rough site plan. These witnesses also identified their signatures on various points on the file seized from DDA already Ex. PW-8/C. PW-15 Inspector Shitanshu Sharma has proved the verification proceedings and trap proceedings. TLO Saminder Singh Gill has also corroborated the version of the trap proceedings. PW-5 Nivesh Aggarwal identified the voice of the accused when it was played in the court. He further argued that PW-2 Uday Pratap Singh proved the sanction order Ex. PW-2/A. He further argued that PW-8 Narender Singh Bhatti proved the seizure memo Ex. PW-8/A vide which TLO had seized the DDA file Ex. PW-8/C and the work allocation order dated 08.03.2017 and PW-12 Laxmi Narain has proved that accused was posted as UDC in Lab Residential Section and was his junior and was also the custodian of the files. He also identified the signature of the accused on the file Ex.PW-8/C [D-8
(iii)] pertaining to property no. C-7/194, Yamuna Vihar. He also proved the work allocation order Ex.PW-8/B, according to which accused Ram CC No. 370/2019 CBI Vs. Ram Karan Page 18 of 88 Karan was allocated the areas mentioned therein including Yamuna Vihar. PW-1 Raj Kumar Sharma proved that accused was allotted mobile phone no. 9968313063 as per CAF Ex. PW-1/A and the identity proof and address proof of the accused as Ex. PW-1/B. PW-3 Rama Shankar Yadav has proved the CDR and Cell ID Chart along with certificate u/s 65-B along with the letter dated 15.11.2017 in respect of mobile phone of the accused as Ex. PW-3/A (colly.) and PW-4 Surender Kumar has proved the CAF of mobile no. 9971745099 belonging to the complainant along with CDR, Cell ID Chart and certificate u/s 65-B of Evidence Act along with letter dated 23.11.2017 as Ex. PW-4/A (colly).
6.5 It has been argued that there are four ingredients which are required to be proved by the prosecution to prove the offences u/s 7 and 13(1)(d) PC Act:- (1) Demand of bribe by the accused; (2) acceptance of bribe by the accused; (3) recovery of bribe money from the accused and (4) the motive. It was argued that the demand of bribe by the accused has been proved by the complainant. The complaint Ex.PW5/A specifically mentioned about the demand of bribe made by the accused. The transcripts Ex. PW5/H-2 (colly) also confirm the demand of bribe by the accused.
6.6 Ld. Sr. PP further argued that accused has taken a false defence in his statement u/s 313 Cr.P.C. that complainant and his father did not complete the formalities relating to conversion of their property from leasehold to freehold and attributed the delay on the part of DDA officials and he being the lowest ranking officer dealing with the file, complainant had animosity towards him specifically and towards DDA CC No. 370/2019 CBI Vs. Ram Karan Page 19 of 88 officials in general and therefore, lodged false complaint against him. He further falsely stated that he had learnt during court deposition that CBI officials attempted to apprehend him but failed on all occasions including 21.07.2017 which was projected as verification proceeding. It was argued that accused has not examined any witness in his defence to substantiate the false defence taken by him. He argued that the prosecution has established all the ingredients of the offence against the accused. There are no material contradictions in the testimony of the witnesses and they can be relied upon to convict the accused.
6.7 Ld. Sr. PP for CBI has placed reliance on the judgments of
(i) Vinod Kumar Vs State of Punjab, (2015) 3 SCC 220;
(ii) S.C. Goel Vs State through CBI, 2017 CRI. L.J. 536;
(iii) Mukhtiar Singh Vs State of Punjab, 2016 CRI. L.J. 4191
(iv) Madhukar Bhaskarrao Joshi Vs State of Maharastra, AIR 2001 SC 147 ARGUMENTS ON BEHALF OF ACCUSED 7.0 Ld. Counsel for accused has argued that there are fundamental defects in the case of prosecution and accused has been falsely implicated by the investigating agency at the behest of the complainant. The case is full of material contradictions, infirmities and inherent improbabilities which go through the root of the case and shake the foundation of the prosecution case. Ld. Defence counsel has argued on four premises:-
(i) Apparent and unexplained contradictions in the oral and documentary evidence w.r.t. manner of exchange of bribe money/acceptance and manner of appreciation of evidence.CC No. 370/2019 CBI Vs. Ram Karan Page 20 of 88
(ii) Demand, acceptance and recovery of bribe money was not proved by the prosecution and the motive to demand bribe also remained unproved.
(iii) Prosecution has failed to refute the defence taken by the accused u/s 313 Cr.P.C
(iv) The proceedings prior to the registration of FIR i.e. verification proceedings were inadmissible in evidence.
7.1 Ld. Defence counsel has argued that as per handing over memo Ex. PW-5/H-1, complainant was allowed to keep mobile phone, photocopy of aadhar card of his father and Rs. 15,000/- treated with phenolphthalein powder before proceeding for the raid and no other incriminating material was kept in the pocket of the complainant. He further argued that as per recovery memo Ex. PW-5/D, the complainant had taken out bribe money from his left pocket of his shirt and counted the currency notes with his both hands. Thereafter, the complainant took out photocopy of aadhar card of his father from his right hand pocket of the pant and kept the bribe amount in the photocopy of the aadhar card and wrapped the same and handed over to the accused who accepted the bribe money and kept it in his green bag. The money was recovered from the green bag by PW-11 Ritesh Kumar on the instruction of TLO which was lying on the upper part of the black bag along with photocopy of the aadhar card and wash of the black bag was taken and black bag was kept in the green bag and the same were sealed in a cloth parcel.
Ld. Defence counsel has argued that PW-5 in his examination in chief dated 11.02.2019 has only deposed regarding the wrapping of Rs. 15,000/- in the aadhar card and putting the same in the bag of the accused and recovery of the same by CBI officers and thereafter, CBI CC No. 370/2019 CBI Vs. Ram Karan Page 21 of 88 team checked the recovery with chemical and took the accused to DDA Office from where the file pertaining to his father was seized. It has been argued that the witness did not recall the proceedings which took place thereafter and he was declared hostile and some documents were shown to him on which he identified his signatures and admitted the suggestions put to the witness by the prosecution. Ld. Defence counsel has argued that in the cross examination by the accused dated 06.12.2021, PW-5 recalled about some medicines having been recovered from the bag of the accused and also deposed that CBI officials noted articles recovered from the bag of the accused at the tea stall but he could not recall whether his signatures were obtained by CBI officials on the said noting or not. PW-5 also admitted that final document regarding search of bag of accused was prepared by CBI officials in the CBI office. Ld. Defence counsel has argued that PW-11 has deposed that the complainant, accused and Manesh Kumar Kanojia sat at the tea shop and he was asked to go towards them and the entire CBI team also reached there and he was asked to open the bag carried by the accused. PW-13 Manesh Kumar Kanojia has deposed that at the tea stall accused asked for the copy of aadhar card of father of the complainant and when the complainant gave the same to the accused, accused told that it was unsigned copy and asked the complainant to sign the same to which the complainant told that he could not sign it as the copy of aadhar card belonged to his father. Thereafter, the accused asked the complainant "jo tu laya hai wo de de" whereupon complainant took out money from his pocket and told accused that he had not counted the same and asked accused to count it but accused declined and asked the complainant to count the same in his presence. PW-13 further deposed that complainant CC No. 370/2019 CBI Vs. Ram Karan Page 22 of 88 counted the money and offered it to the accused but the accused asked the complainant to put it in the paper and give it to him whereupon the complainant kept the money in the paper and gave it to the accused and accused accepted the same and kept it in the bag. PW-13 further deposed that immediately thereafter CBI team came to the spot and he told them that accused accepted the bribe. The other team members of CBI were also watching the incident and on the asking of the Inspector, accused informed that he has kept the money in bag. Ritesh Kumar was asked to take out the money from the bag and counted. The money was kept above another bag in the bag of the accused. CBI team took the wash of the said bag and thereafter the bag was taken into possession by CBI officials.
7.2 Ld. Defence counsel further argued that PW-15 Inspector Shitanshu Sharma in his examination in chief deposed that after some conversation complainant took out the bribe money and kept in the copy of aadhar card and the same has been accepted by the accused who kept the same in the green bag carried by him. PW-16 Inspector Saminder Gill in his examination in chief deposed that complainant counted the money on the direction of the accused and thereafter took out the copy of aadhar card from his right pocket of the pant and put the money in the copy of aadhar card and gave it to accused which was accepted by the accused with his both hands and he kept the same inside the bag. Ld. Defence counsel has argued that if the complainant wrapped the money in copy of aadhar card after counting them with both hands, the phenolphthalein powder smeared on the currency notes cannot get transferred to anything before such transfer of powder on the hands of the accused and if the CC No. 370/2019 CBI Vs. Ram Karan Page 23 of 88 place where such folded aadhar card containing the smeared currency notes is found with traces of phenolphthalein powder, then the hands of the accused with which he accepted the bribe money folded in aadhar card must have also traces of the phenolphthalein powder and the hand wash of the accused becomes essential. Similarly, the green bag in which the black bag was kept must also have traces of phenolphthalein powder and the wash of green bag become essential but in the present case neither the hand wash of the accused nor the wash of the green bag was taken by the TLO. He further argued that all the five witnesses are narrating different story about the event and there is no corroboration amongst their version which demolishes the case of the prosecution w.r.t alleged acceptance and recovery of the bribe amount.
7.3 Ld. Defence counsel has further argued that there are contradictions w.r.t the conversations recorded in the Micro SD cards. According to Ex. PW-5/B on 21.07.2017 at 10.51 AM accused answered the call which was recorded in Micro SD card. Another call was also recorded in the Micro SD card through DVR after 11.20 AM and thereafter, DVR was handed over to complainant and conversation between complainant and accused was recorded in Micro SD Card which was marked as Q-1. He argued that as per Ex. PW-5/H-1 and Ex. PW-5/D on 29.07.2017 telephonic conversation at 11.20 AM was recorded in the Micro SD card which was marked as Q-2 and DVR was handed over to complainant and after 12.10 PM the conversation recorded therein till the accused was arrested near tea stall prior to 02.15 PM were recorded in the said memory card. He further argued that as per Ex. PW-5/D, Micro SD card Q-2 was sealed in the brown envelop and CC No. 370/2019 CBI Vs. Ram Karan Page 24 of 88 after sealing of Q-2, the recorded conversation was played with the help of DVR and some lines were noted for taking specimen voice of the accused. He also submitted that a memory card containing conversation between complainant and accused transpired on 28.07.2017 and 29.07.2017 was seized along with certificate u/s 65-B issued by complainant Ex. PW-5/G. He argued that as per Ex. PW-7/A to Ex. PW- 7/D copies of Q-1, Q-2, Q-3 and S-1 were prepared and sent to CFSL along with Micro SD card and as per Ex. PW-5/H-2 and Ex. PW-5/H multiple transcriptions were prepared which were signed by the witnesses. Ld. Counsel for the accused has argued that Ex. PW-5/D does not claim that prior to sealing of Q-2, any copy was made for the purpose of investigation. PW-5 in his examination in chief also does not say anything about recording having been made by him either on his own or at the instance of CBI. He was declared hostile and thereafter he admitted the suggestions put to him to the said effect. Ld. Counsel has also argued that during the examination in chief of PW-11 and PW-13 and in cross examination of PW-5, the Micro SD cards were played and properties/path of Micro SD cards were found in the deposition of these witnesses but it has not been explained by the prosecution as to how each of the respective folders was made within a folder and how does respective folders, audio files stood modified. Ld. Counsel has also argued that since Micro SD card Q-2 was sealed on the spot as claimed in Ex. PW-5/D and no copy thereof was prepared, the possibility of hearing the conversation could not arise. He also argued that Ex. PW-5/D was prepared more than seven hours after the apprehension of the accused and PW-16 does not recall the correct sequence of event. There is also no explanation as to why Micro SD cards Q-1, Q-2, Q-3 and S-1 were CC No. 370/2019 CBI Vs. Ram Karan Page 25 of 88 directed to be handled by PW-7 who is not an expert u/s 45-A of Indian Evidence Act nor he is competent authority u/s 79-A under IT Act, 2000. PW-7 did not calculate any hash value of the data received vide Micro SD cards or the hash value of the data sent back in the form of Micro SD cards or copies thereof. No certificate u/s 65-B of Indian Evidence Act qua each of the transcripts which were prepared from copies of Micro SD Cards has been placed on record despite objection being taken by the accused during the deposition of PW-7. It was argued that the projected electronic data i.e. Q-1, Q-2, Q-3 and S-1 and their transcript is not admissible in evidence and thus cannot be relied upon.
7.4 Ld. Defence counsel has also argued that during his statement recorded u/s 313 Cr.P.C accused has denied the questions relating to alleged demand, acceptance and recovery of money from his possession. However, neither the hand wash of the accused was taken nor wash of green bag was taken. Accused has taken a defence that no search of green coloured bag was ever taken and had such search being taken by the TLO, the articles lying therein, which were found when the bag was produced in the court, must have come to the knowledge of the members of the trap team.
7.5 Ld. Defence counsel has further argued that all the documents in the present case i.e. verification memo Ex. PW-5/B, further verification memo Ex. PW-15/A, FIR Ex. PW-5/C, handing over memo Ex. PW-5/H- 1 and recovery memo Ex. PW-5/D and arrest-cum-personal search memo Ex. PW-11/B were prepared in the office of CBI and no explanation has been given as to why recovery memo and arrest cum personal search CC No. 370/2019 CBI Vs. Ram Karan Page 26 of 88 memo were not prepared at the spot or in the DDA office where office search memo Ex. PW-8/A were prepared. It was argued that the office search memo started at 02.15 PM and ended at 04.35 PM and there was ample time to prepare at least arrest cum personal search memo in the DDA office but PW-16 has admitted that he did not find it necessary to prepare the arrest memo in the DDA office. The explanation given by PW-16 that he did not prepare the recovery memo in DDA office as it was closing time despite admitting the fact that the office of DDA does not close at 02.15 PM hence, there is no cogent and palatable reason for not preparing the recovery memo or arrest cum personal search memo at the spot or in DDA office.
7.6 Ld. Defence counsel has argued that PW-5 Nivesh Aggarwal does not say that money was demanded from him either on 21.07.2017 or on 29.07.2017. He also does not say that he had brought the money to be offered as bribe of his own or handed over the said money to the CBI officials. PW-5 was declared hostile and he admitted all the suggestions except the fact that after 29.07.2017 he was called to the CBI office on 08.11.2017 by A.K. Singh but he could not recall as to what proceedings had taken place on that day. When he was shown Ex.PW-5/H-2, he deposed "jo bhi hua tha meine sign kiya tha". PW-5 also denied the suggestion that he had kept the tainted bribe amount in the photocopy of the aadhar card and handed over the same to accused who accepted the bribe cautiously with both his hands and kept the same in his green bag. PW-5 also denied the suggestion that he had counted the bribe amount and told that amount was Rs. 15,000/- and further denied that he had not told such facts to CBI. Ld. Defence counsel argued that PW-5 does not CC No. 370/2019 CBI Vs. Ram Karan Page 27 of 88 explain as to why he admitted the suggestion put to him by Ld. Sr. PP during cross examination when he had deposed in his examination in chief that he does not remember as to what proceedings took place. It was further argued that PW-13 Manesh Kumar Kanojia also does not say that money was demanded by the accused. It was argued that the complainant had not supported the case of prosecution w.r.t the manner of demand and acceptance on the part of the accused in the examination in chief and once he was declared hostile, he accepted most of the suggestions but it will not construe as supporting the case of prosecution on the context of demand. He further argued that support of the prosecution case by the shadow witness does not substitute the essential requirements, required to prove demand as held by Hon'ble Supreme Court in P. Satyanarayana Murthy Vs District Inspector of Police, State of A.P. and Anr. (2015) 10 SCC 152.
7.7 Another limb of arguments of Ld. Defence counsel is that accused has been able to show that the contents of complaint Ex. PW-5/A to the fact that father of the complainant had completed all the formalities relating to conversion of his plot from leasehold to freehold in January, 2016 or till the date of complaint is false. Accused has also been able to show recorded conversations and original devices/Micro SD cards Q-1 to Q-3 have been fabricated. After the deposit of indemnity bonds by the complainant, the accused had already cleared the file on 28.07.2017 and his superior officers had sent the file for dispatch. It was also argued that accused has also been successful in proving that accused had not demanded any money from the complainant and that the bag of the accused from where alleged recovery was made, was never searched by CC No. 370/2019 CBI Vs. Ram Karan Page 28 of 88 CBI team. Accused had also been able to prove that he was not arrested either at the alleged spot or in the office of DDA despite the fact that there had been no hindrance for CBI to prepare the documents. Accused has also been able to prove that there existed no motive to demand bribe after submission of indemnity bonds on 27.07.2017 and the only requirement raised by the superior officers of the accused was production of aadhar card by the allottee and copies of conveyance deed had already been prepared on record. Ld. Counsel has also argued that accused has been able to prove his false implication by CBI officials as no hand wash of the accused was conducted nor any wash of the green bag was done. Further, the recovery of the personal articles of the accused along with some cash from the bag of the accused (collectively exhibited as Ex. PW- 11/F-3) shows that the bag of the accused was never searched. He argued that the version of the accused that he was falsely implicated is probable and plausible for which there is no rebuttal by the prosecution and therefore, accused deserves acquittal.
7.8 Ld. Defence counsel has argued that the contents of the complaint Ex. PW-5/A given by the complainant are false as complainant himself acknowledged that on 14.07.2017 he had deposited composition fees of Rs. 3,750/-. The letter dated 07.07.2017, which is part of the complaint also shows that father of the complainant was required to deposit composition fees w.r.t his leasehold plot. It was argued that the verification memo dated 21.07.2017 Ex. PW-5/B shows that indemnity bonds was required to be deposited by the father of complainant and the further verification memo dated 28.07.2017 shows that indemnity bonds was deposited on 25.07.2017. Ld. Defence counsel has further argued CC No. 370/2019 CBI Vs. Ram Karan Page 29 of 88 that perusal of the various notings i.e. 21/N to 30/N of DDA file Ex. PW-8/A would show that the formalities for conversion of leasehold property to freehold property were not completed even till the filing of complaint and the correspondence 20/C to 26/C reflects that PW-8 had prepared the forwarding letter with duly filled up Conveyance Deed which were thereafter required to be signed.
7.9. Ld. Defence counsel has also argued that PW-5 Nivesh Aggarwal in his deposition has admitted that formalities were not completed as he had deposited the indemnity bonds on 25.07.2017. PW-5 also does not say that money was demanded by the accused on 21.07.2017 when accused had informed him to submit indemnity bonds or had taken him to some shop who demanded Rs. 1,000/-for preparation of indemnity bonds. It was argued that on 29.07.2017 PW-5 had told the accused that he had brought the photocopy of aadhar card of his father and accused should process the file. PW-5 further admitted in his deposition dated 06.12.2021 that he had not met with the accused in his office on 14.07.2017, 21.07.2017 and 25.07.2017 which is contrary to his deposition of the same facts. PW-5 further admitted in his cross examination dated 06.12.2021 that he had not mentioned about the receipt dated 07.07.2017 and time given up to 23.07.2017 in his complaint. He further admitted that his father has received the letter dated 20.03.2017 and it bears signature his father at point A. He further testified that on 21.07.2017 accused had informed that all formalities in his file has been complete except indemnity bonds and accused had further told him that requirement of indemnity bonds had been raised by Additional Director vide his note dated 20.07.2017 and therefore, he CC No. 370/2019 CBI Vs. Ram Karan Page 30 of 88 should get I-bonds deposited at the receipt Section of DDA as early as possible.
7.10 Ld. Defence counsel has argued that PW-5 Nivesh Aggarwal in his examination in chief did not depose that any document was prepared on 21.07.2017 except identifying his signature when the document was shown to him. After he was declared hostile, PW-5 admitted the suggestions of preparation of verification memo Ex. PW-5/B in the CBI office. He has further argued that PW-10 Pritpal Singh has not specifically stated anything about verification memo dated 21.07.2017, although he testified that his signatures were obtained as a witness to the proceedings conducted in the CBI office. It was argued that this cannot be read as preparation of documents for recording the activities of complainant or the accused or the witness which they performed on 21.07.2017. Ld. Defence counsel has further argued that examination in chief of PW-10 was deferred and when he was recalled on 07.01.2020 he was shown the verification memo wherein he has identified his signature on it, subsequently he was declared hostile on 08.01.2020 w.r.t the transcription having been prepared by the CBI. Ld. Defence counsel has further argued that PW-10 also admitted that he had participated in one more case of CBI. He further admitted that there exists large blank space on the back side of page no. 9 between the written words and signature and no reasons have been given which shows that he had signed on blank papers. Ld. Defence counsel has also argued that PW-10 in his cross examination dated 24.01.2020 admitted that the transcript (D-13) had not been prepared in his presence and he had signed the final transcript but no recording was played. However, in his further cross examination by CC No. 370/2019 CBI Vs. Ram Karan Page 31 of 88 the CBI, he admitted the suggestions that CD was played and transcript was prepared. Ld. Defence counsel has argued that the testimony of this witness shows that his deposition is worthless.
Ld. Defence counsel has further argued that PW-15 in his cross examination admitted that he had not verified as to whether the work of conversion was held up because of non furnishing of requisite documents and conversion fees or not and he had believed the version of complainant narrated in the further verification memo Ex. PW-15/A. Ld. Counsel for accused has argued that there is complete absence of cohesive and believable evidence relating to demand or acceptance of alleged bribe coupled with conscious violation of CBI Manual (Crime) and unexplained contradiction in the deposition of witnesses. Hence, accused deserves acquittal.
7.11 Ld. Counsel for accused has also placed reliance on the following judgments in support of his arguments:-
(i) Amarpal (Rajpal V. State, 2010 VII AD (Delhi) 696;
(ii)Arjun Panditrao Khotkar V. Kailash Kushanrao Gorantyal & ors., (2020) 7 SCC 1;
(iii) P. Satyanarayan Murthy v. District Inspector of Police, State of A.P. & Anr., (2015) 10 SCC 152;
(iv) Parminder Kaur @ P.P. Kaur Alias Soni V. State of Punjab, (2020) SCC OnLine SC 605;
(v) P. Sirajuddin etc. V. State of Madras, 1970 (1) SCC 595;
(vi) Ashok Tshering Bhutia V. State of Sikkim, (2011) 4 SCC 402;
(vii) Charan Singh V. State of Maharastra, (2021) 5 SCC 469.
APPRECIATION OF EVIDENCE
8. At the outset, it may be noted that the following facts are not in CC No. 370/2019 CBI Vs. Ram Karan Page 32 of 88 dispute, being admitted by the accused in his statement u/s 313 Cr.P.C:-
(i) that accused was working as UDC in LAB (Residential Section) of DDA on the relevant date i.e. 29.07.2017;
(ii) that the accused was allocated the area of Yamuna Vihar amongst other areas mentioned in the work allocation order dated 08.03.2017 Ex.PW-8/B;
(iii) that father of the complainant Nivesh Aggarwal was allotted plot bearing no. C-7/194, Yamuna Vihar, Delhi on leasehold and he had moved an application for conversion of leasehold property into freehold property to DDA;
(iv) that the accused was dealing with file pertaining to property no. C-
7/194, Yamuna Vihar Ex.PW-8/C which was for the purpose of leasehold property to freehold property and had prepared various notes in the file.
SANCTION FOR PROSECUTION OF ACCUSED
9. The object behind the requirement of grant of sanction to prose- cute a public servant need not detain the court save and except to reiter- ate that the provisions in this regard either under the Code of Criminal Procedure or the Prevention of Corruption Act, 1988 are designed as a check on frivolous, mischievous and unscrupulous attempts to prosecute a honest public servant for acts arising out of the discharge of duty and also to enable him to efficiently perform the wide range of duties cast on him by virtue of his office. The test, therefore, always is whether the act complained of has a reasonable connection with the discharge of official duties by the Government or the public servant. If such connection exists and the discharge or exercise of the governmental function is, prima fa-
CC No. 370/2019 CBI Vs. Ram Karan Page 33 of 88cie, founded on the bona fide judgment of the public servant, the require- ment of sanction will be insisted upon so as to act as a filter to keep at bay any motivated, ill-founded and frivolous prosecution against the public servant. However, realizing that the dividing line between an act in the discharge of official duty and an act that is not, may, at times, get blurred thereby enabling certain unjustified claims to be raised also on behalf of the public servant so as to derive undue advantage of the re- quirement of sanction, specific provisions have been incorporated in Sec- tion 19 (3) of the Prevention of Corruption Act as well as in Section 465 of the Code of Criminal Procedure which, inter alia, make it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent court unless in the opinion of the court a failure of justice has been occasioned.
10. Ld. Sr. PP for CBI has submitted that CBI had applied for sanc- tion for prosecution of accused and had obtained the sanction order Ex.PW-2/A and the said sanction order was proved by examining PW-2 Sh. Udai Pratap Singh, Retd. Vice Chairman of DDA who proved the sanction order against the accused. It was argued that the accused has not raised any dispute with regard to the validity of the sanction order or any error or omission or irregularities in the grant of the sanction for prose- cution.
11. In the present case, the accused has not challenged the validity of the sanction order Ex.PW-2/A which was issued by PW-2 being the com- petent authority to remove accused Ram Karan from his office. Ld. Counsel for the accused has also not assailed the aforesaid sanction order CC No. 370/2019 CBI Vs. Ram Karan Page 34 of 88 during the course of his arguments. Perusal of sanction order PW-2/A along with testimony of PW-2 Sh. Udai Pratap Singh shows that the rele- vant material had been placed and examined by the competent authority and the competent authority accorded sanction against the accused after due application of its mind on the CBI report and its enclosed docu- ments. Thus, prosecution has established that the sanction was properly accorded after due application of mind and is valid.
12. Now I shall deal with the merits of the case. In Sunil Kumar Mishra Vs. State (CBI),2007(139) DLT 407(Del.HC), it was observed that:-
"All cases of corruption have two important aspects and they are(i)demand and (ii) acceptance. Unless demand and acceptance of illegal gratification by public servant charged under the Prevention of Corruption Act are proved by the prosecution beyond doubt, the presumption provided for in Section 20 of the Act cannot be drawn. Three cardi- nal principles, of criminal jurisprudence are well settled and they are :-
(i) that the onus lied affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot de-
rive any benefit from weakness of falsity of the defence ver- sion while proving its case;
(ii)that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty;and
(iii)the onus of the prosecution never shifts."
(i) DEMAND OF ILLEGAL GRATIFICATION BY THE AC-
CUSED
13. Ld. Counsel for accused has vehemently argued that demand of il- legal gratification is sine qua non for constituting an offence under PC Act and mere recovery of tainted money is not sufficient to convict the CC No. 370/2019 CBI Vs. Ram Karan Page 35 of 88 accused in the absence of any evidence with regard to demand and ac- ceptance of amount as illegal gratification. Reliance in this regard was placed by him on the judgment of P. Satyanarayana Murthy Vs Dis- trict Inspector of Police, and State of A.P.(supra). He has further ar- gued that in the present case, the complainant was declared hostile and he has not supported the case of prosecution. However, in his cross ex- amination, he has identified his signature on the documents shown by Ld. Sr. PP. It was further argued that once complainant was declared hostile, he had accepted most of the suggestions but that will not con- strue as supporting the case of prosecution in the context of demand of bribe. He further argued that the projected shadow witness does not sub- stitute the essential requirement, required to prove demand. He further argued that complainant did not depose anything regarding the verifica- tion memo Ex.PW-5/B(D-2) except identifying his signature when doc- ument was shown to him. It was also argued that there are apparent contradictions in the testimony of complainant PW-5 Nivesh Aggarwal. He also argued that the complainant does not say that money was de- manded from him either on 21.07.2017 or on 29.07.2017. Ld. Defence counsel further argued that PW-10 Pritpal Singh also does not specifi- cally depose about the verification memo. He was also declared hostile w.r.t transcription having been prepared by CBI. PW-10 also admitted in his cross examination that there was large blank space on the back side of page 9 between the written words and his signature but no reasons were given for the same which shows that he had signed on blank pa- pers. PW-10 also admitted in his cross examination that the transcript D- 13 had not been prepared in his presence and that he had signed the final transcript but no recording was played. It was argued that the testimony CC No. 370/2019 CBI Vs. Ram Karan Page 36 of 88 of this witness is not credit worthy and cannot be relied upon. He further argued that the verifying officer PW-15 in his cross examination had ad- mitted that he had not verified whether the work of conversion was held up due to non furnishing of requisite documents and he merely believed the version of complainant narrated in further verification memo dated 28.07.2017 Ex. PW-15/A. Ld. Counsel also argued that even otherwise the verification memo and further verification memo which were pre- pared prior to the registration of FIR cannot be looked into as they are not admissible in evidence in view of the judgment of Hon 'ble Supreme Court in Charan Singh Vs State of Maharashtra (supra) wherein Hon'ble Supreme Court held that the inquiry conducted prior to the registration of FIR is only to ascertain whether a cognizable offence is disclosed or not but such inquiry cannot be a fishing or roving inquiry.
Ld. Counsel for accused has also argued that prosecution has also failed to prove any demand of bribe by the accused at the time of con- ducting the trap proceeding. He argued that perusal of the statement of prosecution witnesses i.e. PW-5 Nivesh Aggarwal, PW-11 Ritesh Kumar, PW-10 Manesh Kumar Kanojia, PW-15 Shitanshu Sharma and PW-16 Saminder Singh Gill does not show any demand of the bribe by the ac- cused Ram Karan. He also challenged the electronic evidence in the form of Micro SD Cards Q-1, Q-2 and Q-3 wherein the conversation be- tween the complainant and accused were recorded on the ground that these documents were examined by PW-14 Subrat Kumar Chaudhary but he is not an expert witness u/s 45 -A of Indian Evidence Act r/w Section 79-A of IT Act. He further argued that the transcripts of the conversation E.x PW-5/H-2 (part of D-14) were prepared from the CDs obtained by the IO from CFSL. He argued that these CDs were prepared by PW-7 S. CC No. 370/2019 CBI Vs. Ram Karan Page 37 of 88 Ingarsal, Principal Scientific Officer (Photo Division) (CFSL). He ar- gued that the said officer was not a qualified person to prepare the CDs as he was not notified examiner of electronic evidence under 79-A of IT Act. He further argued that no certificate u/'s 65-B of Indian Evidence Act has been given by the said officer for the copies of CDs prepared by him. The said CDs being in the nature of secondary evidence are not ad- missible without the requisite certificate u/s 65-B of Indian Evidence Act and transcripts prepared on the basis of said CDs cannot be looked into. Ld. Counsel for the accused has placed reliance on the judgment of Hon'ble Supreme Court in Arjun Pandit Rao Khotkar Vs Kailash Kushan Rao, Gorantyal & Ors., (supra) in support of his arguments. He argued that there is no legal evidence to prove demand of illegal gratification by the accused. Hence, in the absence of any proof of demand of bribe, the prosecution has failed to prove its case.
14. Ld. Sr. PP for CBI on the other hand argued that the demand of bribe has been proved by the complainant in his complaint Ex. PW5/A. The complainant has supported his complaint and has corroborated the demand of bribe. It was argued that merely because PW-5 was declared hostile and was cross examined by CBI, it cannot be said that his testi- mony is washed off. Ld. Sr. PP has placed reliance of Hon'ble Supreme Court in Vinod Kumar Vs State of Punjab wherein it was held that "even if a witness is characterized as a hostile witness, his evidence is not com- pletely effaced and the said evidence remains admissible in trial and there is no legal bar to base a conviction upon his testimony, if corrobo- rated by other reliable evidence". Ld. Sr. PP has further argued that PW-5 in his cross examination has fully supported the case of prosecu-
CC No. 370/2019 CBI Vs. Ram Karan Page 38 of 88tion on material aspects of demand of bribe by the accused, acceptance of illegal gratification by the accused in the presence of shadow witness, recovery of illegal gratification from the bag of the accused. He further argued that the demand of illegal gratification is not only appearing in complaint Ex. PW-5/A but the same is also appearing in the verification memo Ex. PW-5/B (D-2) and further verification memo Ex. PW-15/A. He also argued that even at the time of conducting the trap proceeding, demand of illegal gratification is being proved by circumstantial evi- dence i.e. conduct of the accused in demanding the bribe indirectly as well as gesture and the same has been corroborated by the independent witnesses PW-11 Ritesh Kumar, PW-10 Manesh Kumar Kanojia, and CBI officials namely PW-15 Shitanshu Sharma and PW-16 Saminder Singh Gill. He further argued that the demand of illegal gratification by the accused has also been proved by PW-9 Sh. Mukesh Sharma, uncle of the accused.
15. In the cases of giving and taking of bribe, demand may arise at dif- ferent stages but definitely it would arise prior to reporting the matter to the investigating agency. It is but natural that without there being any demand of bribe, no person would file a complaint with the investigating agency. Further demand need not be in a particular shape or format. There is no problem when the demand is clear and specific but law does not require that demand should only be direct and specific. There is no straight jacket formula to ascertain demand. The question of demand can be inferred from the conduct of the accused. Remaining non-committal and silent may also sometimes convey guilty mind.
CC No. 370/2019 CBI Vs. Ram Karan Page 39 of 8816. In the present case, the prosecution has argued that there is evi- dence of demand of illegal gratification at every stage i.e. prior to filing of the complaint, during verification proceedings and at the stage of trap proceedings. I shall deal with the demands made by the accused at each stage separately.
A. Demand of illegal gratification prior to filing of complaint
17. In this case the complaint has been filed by the complainant on 21.07.2017 and the same has been proved by the complainant in his de- position as Ex. PW-5/A. Perusal of the complaint Ex.PW5/A (D-1) shows that it specifically states that accused Ram Karan told the com- plainant that to clear the file in DDA, one has to pay bribe. Accused fur- ther told complainant to pay bribe on which the complainant got scared and did not say anything. Thereafter, the complainant again went to his uncle Mukesh Sharma and met the accused. The accused again told the complainant that he had to pay bribe to get clear his file. The complaint further states that his uncle also requested accused Ram Karan to clear the file of the complainant on which the accused told that there are senior officers and he has to pay them and therefore, complainant should pay the bribe. The complaint Ex. PW-5/A further states that on 14.07.2017 complainant went to DDA INA to deposit composition fees of Rs. 37500/- and after depositing the fees, when the complainant was coming out, accused Ram Karan came to him and told him to give bribe. Ac- cused Ram Karan also told him that he had paid Rs. 5,000/- to the senior officers of DDA to get his file clear and also said to the complainant that many a times he had told the complainant to give bribe but the com-
CC No. 370/2019 CBI Vs. Ram Karan Page 40 of 88plainant did not turn up. Accused further told the complainant to come on 21.07.2017 and give bribe otherwise to face consequences. Accused told the complainant to give Rs. 12,500/- as bribe. PW-5 in his exami- nation in chief has also categorically deposed these facts. In the cross examination by the counsel for the accused he has denied the suggestion that no demand was made by the accused at any point of time or that no complaint was made by him to CBI prior to arrest of the accused.
18. PW-9 Sh. Mukesh Kumar, the uncle of the complainant has also categorically deposed in his examination in chief that when he had gone to DDA office for depositing some money and after depositing the money, accused met them and accused kept on demanding bribe and said that he had already spent Rs. 5000/- on the file despite the complainant pleading with the accused that he is unable to give the bribe. In the cross examination by the counsel for the accused, PW-9 has denied the sugges- tion that he had not gone to DDA office with the complainant not he had met with the accused. He had also denied the suggestion that at no point of time accused had uttered the word "isme kharcha lagega" or that he had already spent Rs. 5000/- on the file. He also denied the suggest that accused never demanded any money from the complainant in his pres- ence. There is nothing in the cross examination which could shake the credibility of this witness. Thus, the demand of illegal gratification by the accused prior to the filing of the complaint stands proved.
B. Demand of illegal gratification during verification proceed-
ings CC No. 370/2019 CBI Vs. Ram Karan Page 41 of 88
19. As per the case of prosecution, accused Ram Karan had demanded bribe from the complainant during verification proceedings conducted on 21.07.2017 and 28.07.2017. The conversation between the complainant and accused on 21.07.2017 was recorded in Micro SD Card Q-1 through DVR during the verification proceedings and the telephonic conversation dated 28.07.2017 between the complainant and the accused was recorded in the Micro SD Card Q-3 inserted in the mobile phone of the com- plainant, which the complainant handed over to the TLO by the com- plainant on 29.07.2017.
20. Ld. Sr. PP submitted that the verification proceedings was con- ducted by PW-15 Shitanshu Sharma in the presence of independent wit- ness Prit Pal Singh Talwar. He argued that although PW-10 could not hear the conversation between the complainant and the accused as the ac- cused had taken the complainant to Safdarjung Bus Terminal and PW-10 could not follow him but after complainant returned back, they had gone to CBI office and the DVR recording was heard and rough transcript was prepared in the CBI office which revealed the demand of bribe. He ar- gued that complainant had also narrated the incident to the verifying offi- cer PW-15 Shitanshu Sharma in the presence of PW-10 which shows that accused had demanded illegal gratification from the complainant.
21. Ld. Counsel for the accused has argued that the proceedings con- ducted prior to registration of FIR cannot be used as evidence during the trial and the purpose of verification proceedings was only for the satis- faction of the verifying officer to find out whether any cognizable of- fence has taken place or not. Ld. Defence counsel has placed reliance on CC No. 370/2019 CBI Vs. Ram Karan Page 42 of 88 the judgment of Charan singh Vs State of Maharashtra (supra) wherein it was held that "the statement of the person against whom pre FIR inquiry is being conducted and recorded during search inquiry at pre FIR stage, the same cannot be state to be a statement u/s 160 Cr.P.C and/or the statement to be recorded during the course of investigation and further such statement cannot be said to be a confessional statement and it would be only to ascertain whether a cognizable offence is disclosed or not".
Ld. Counsel for the accused has further disputed the authenticity and genuineness of the electronic evidence being produced in the case i.e. the Micro SD cards Q-1, Q-2, Q-3 and S-1 on the ground that the prosecution has failed to prove that there is no tampering or fabrication in the said Micro SD cards. Ld. Defence counsel also argued that no specimen voice samples of the accused were obtained and that PW-14 Subrat Kumar Chaudhary is not an expert for examination of electronic records u/s 45-A of Indian Evidence Act as he is not a notified examiner of electronic evidence as envisaged u/s 79-A of IT Act. He further argued that perusal of the evidence shows that before the Micro SD cards were sent to PW-14 for examination, the same were also sent to PW-7 S. In- grasal for preparation of CDs for investigation purposes. He argued that the transcripts of the Micro SD cards were prepared by hearing the con- versations recorded in those CDs but the said CDs were never produced by the prosecution before the court. He also argued that PW-7 was not an expert for examination of electronic records u/s 45-A of Indian Evi- dence Act as he is not a notified examiner of electronic evidence as en- visaged u/s 79-A of IT Act. It was also argued that the said CDs were in the nature of secondary evidence but no certificate u/s 65-B of Indian CC No. 370/2019 CBI Vs. Ram Karan Page 43 of 88 Evidence Act has been given by PW-7, a fact which has been admitted by PW-7 during his cross examination. It was argued that in the absence of the CDs and certificate u/s 65-B of Indian Evidence Act being placed on record by the prosecution, the transcripts prepared on the basis of those CDs are inadmissible and the same cannot be looked into. In sup- port of his arguments, Ld. Defence counsel has relied upon the judgment of Arjun Pandit Rao Khotkar Vs Kailash Kushanrao Gorantyal & Ors. (supra).
22. Ld. Defence counsel has also argued that there is no corroboration to the version of the complainant PW-5 Nivesh Aggarwal and testimony of the complainant cannot be relied upon as he did not depose anything about the verification proceedings in his examination in chief but merely identified his signature on verification and further verification memos in the cross examination by Ld. Sr. PP and further admitted the suggestions given by Ld. Sr. PP. Hence, no weightage can be given to such testimony. It was also argued that testimony of PW-10 is also no help to the prose- cution as PW-10 did not hear any conversation which took place between the complainant and accused.
23. At the outset, I do not agree with the submissions made by Ld. De- fence counsel that the verification proceedings conducted by PW-15 on 21.07.2017 before registration of FIR cannot be used during the trial. Perusal of the judgment of Charan Singh (supra) relied upon by the counsel for the accused shows that in the said judgment Hon'ble Supreme Court has held that in the cases such as corruption cases, pre- liminary inquiry at pre-FIR stage is not only permissible but desirable to CC No. 370/2019 CBI Vs. Ram Karan Page 44 of 88 ascertain whether cognizable offence is disclosed or not. In the said case, the preliminary inquiry was conducted as there were allegations of corrupt practices and accumulation of assets disproportionate to the known sources of income of the appellant. It was held that if after such inquiry it was found that complaint was vexatious or that it had no sub- stance at all, no FIR shall be lodged, however, if the material collected during such inquiry disclosed prima facie commission of offence, FIR shall be lodged and criminal proceedings will be put in motion and fur- ther investigation shall be carried out. In the aforesaid case the statement of the appellant was recorded to clarify regarding his assets or known sources of income and it was held that such statement cannot be used against appellant during the trial as it was not a confessional statement. However, in the present case no such statement of the accused has been recorded during the verification proceedings conducted on 21.07.2017 or 28.07.2017. The evidence collected by the verifying officer is in the na- ture of recorded conversation between the complainant and the accused, which in my opinion can be looked into to ascertain whether there was any demand of illegal gratification by the accused during the verification proceedings or not.
24. There can be no dispute with the law laid down by Hon'ble Supreme Court in the case of Arjun Pandit Rao (supra) that certificate u/s 65-B of Indian Evidence Act is required when secondary evidence is pro- duced in the form of electronic evidence and the original evidence is not produced. However, there is no requirement of filing certificate u/s 65- B of Indian Evidence Act when the original document/electronic records are produced in the court. In the present case the original Micro SD CC No. 370/2019 CBI Vs. Ram Karan Page 45 of 88 Cards Q-1, Q-2 and S-1 containing the recorded conversations between the complainant and the accused have been produced in the court. Hence, there is no requirement to file certificate u/s 65-B of Indian Evidence Act qua these electronic records. The prosecution has already produced cer- tificate u/s 65-B of Indian Evidence Act qua the Micro SD Cards Q-3 which contained the call record dated 28.07.2017 containing the conver- sation between the complainant and the accused. Hence, all these four Micro SD cards Q-1, Q-2, Q-3 and S-1 are admissible in evidence. So far as the CDs on the basis of which the final transcripts Ex. PW-15/H-2 were prepared, the said CDs have not been produced on record by the prosecution and hence, the question of not producing certificate u/s 65-B qua those CDs looses its relevance.
The only question which requires consideration is whether the transcripts Ex .PW-15/H-2 can be read in evidence when the CDs on the basis of which those transcripts were prepared have not been produced in the court. I have no hesitation in looking into those transcripts as the original electronic records ( i.e. Micro SD Cards Q-1 to Q-3 and S-1) containing the conversations are already on judicial record. Mere ab- sence of secondary evidence i.e. CDs on the basis of which transcripts were prepared cannot be a ground to reject those transcripts whose origi- nal electronic record is available on judicial record. Those original elec- tronic evidence i.e. Micro SD cards were played in the court during the trial and the witnesses produced by the prosecution authenticated and identified their voices as well as the voice of the accused before the court. Hence, the objection raised by Ld. defence counsel that these transcripts are inadmissible in evidence in the absence of CDs is rejected.
CC No. 370/2019 CBI Vs. Ram Karan Page 46 of 8825. Another limb of argument made by Ld. Defence counsel regarding electronic evidence produced by the prosecution is that the Micro SD cards are not examined by the expert witnesses u/s 45-A of Indian Evi- dence Act. No hash value of the data received has been given by PW-7 and Ex. PW-5/D (D-6) does not claim that prior to sealing of the Micro SD Card Q-2, any copy for purpose of investigation was made. There is no explanation as to how the folders were made within folders and how does respective folders and audio files stood modified. Hence, there is apprehension of tampering of the Micro SD cards.
26. I have perused the testimonies of the witnesses particularly PW- 15, PW-16, PW-17, PW-7 and PW-14. Testimony of PW-15 shows that he had immediately sealed the Micro SD card Q-1 in the CBI office after hearing the conversation and preparing the rough transcript. This fact has also been corroborated by PW-10 in his deposition. Similarly, PW-16 Inspector Saminder Singh Gill has also deposed that he had sealed the Micro SD Card Q-2 in the presence of independent witnesses after hear- ing the conversation recording in the memory card through DVR. PW- 11 Ritesh Kumar and PW-13 Manesh Kumar Kanojia have also corrobo- rated this fact in their deposition. PW-17 A.K. Singh has also deposed that he had sent the recordings in Micro SD cards Q-1, Q-2 and Q-3 and S-1 to CFSL for obtaining the copies and the same were again sent to CFSL as separate copy for investigation was not provided by CFSL. He also deposed that he had sent the Micro SD cards Q-1, Q-2, Q-3 and S-1 and DVR to CFSL for expert opinion. PW-7 S. Ingrasal and PW-14 Sub- rat Kumar Chaudhary in their testimonies have nowhere stated that the Micro SD cards were received in unsealed condition or seal was broken CC No. 370/2019 CBI Vs. Ram Karan Page 47 of 88 rather they both have categorically deposed that the seal on the parcel was intact and were tallying with the specimen seal. Once it is estab- lished by prosecution that the electronic records were sealed at the earli- est opportunities and the same remained sealed throughout the investiga- tion, there arises no occasion for tampering of the electronic records. PW-14 has also identified in the court, his official seal with which he had sealed the electronic records. In his cross examination, he has denied the question put by Ld. Defence counsel that in case audio data has been recorded by using computer on Micro SD card Q-1, Q-2, Q-3 and S-1, the manipulation in the data so recorded cannot be detected. He further stated that manipulation can be detected using spectography, wave form, critical auditory listening. Perusal of his testimony also shows that there is no suggestion put to the witness as to how and when the data in the Micro SD cards was manipulated. Apart from giving bald sugges- tions to the witnesses that the electronic records have been tampered, there is no positive evidence led by accused to substantiate his allega- tions. Once the accused alleges that there has been tampering of fabrica- tion in the electronic record, the onus lies upon the accused to prove such tampering. Mere giving of bald suggestions to the witnesses that the Micro SD cards were tampered, cannot take place of substantive evi- dence showing that tampering. Hence, in the absence of any positive evidence being led by the accused to show that there was tampering in the electronic records, the submissions made by Ld. Defence counsel in this regard cannot be upheld and the same is hereby rejected.
27. Even otherwise, the nature of electronic evidence like other evi- dences such as medical evidence, hand wash of the accused etc are CC No. 370/2019 CBI Vs. Ram Karan Page 48 of 88 merely corroborative in nature. The substantive evidence is the ocular testimony of the witnesses who have seen the crime. If the eye witnesses substantiate the case of the prosecution in material particulars, the cor- roborative evidence does not have much value. Hon'ble Supreme Court in number of cases has held that conviction can be based on the oral tes- timony of the eye witnesses where the same are found to be consistent and trustworthy. The corroborative evidence becomes importance only when the eye witnesses falter in their deposition before the court. Hence, the opinion of the expert witness as envisaged u/s 45-A of In- dian Evidence Act will assume importance/significance if the maker of the electronic evidence fails to identify the voices recorded therein and the prosecution entirely relies upon the opinion given by the expert wit- ness regarding identification of voices contained in the electronic records.
28. Perusal of testimony of PW-5 Nivesh Aggarwal shows that al- though in his examination in chief, he has not deposed about the verifica- tion proceedings being conducted by the CBI but when he was cross ex- amined by Sr. PP for CBI, he admitted that after giving complaint to CBI, verification proceedings were conducted by PW-15 through DVR and had drawn a memo to that effect. He also admitted that the conver- sation recorded in the memory card Q-1 was heard and rough transcript of the conversation was prepared in the presence of independent witness. The witness identified the rough transcript Ex. PW-5/H (D-15) and also identified his signature at point A on the transcript. He also proved the verification proceedings Ex. PW-5/B and deposed that the brass seal used at the time of verification was handed over to indepen-
CC No. 370/2019 CBI Vs. Ram Karan Page 49 of 88dent witness. PW-5 also identified the conversation contained in file 170721_1122 contained in the memory card Q-1 Ex. PW-5/K and after hearing the conversation, stated that the conversation took place on 21.07.2017 which was also reflected in the transcript Ex. PW-5/H-2 (colly) (D-14) along with transcription cum voice identification memo from point B to B. When PW-5 was cross examined by Ld. Defence counsel, he denied the suggestion that no verification was done on 21.07.2017 and also denied the suggestion that there was no recorded conversation between him and accused Ram Karan. He further denied the suggestion given by the accused that no verification memo was pre- pared on 21.07.2017 or that he had never visited or met accused in his office on 14.07.2017, 21.07.2017 or 25.07.2017.
29. PW-10 Sh. Prit Pal Singh has also corroborated the version of the complainant that verification proceedings was conducted by CBI on 21.07.2017 and after the verification proceedings, they had returned back to CBI office where complainant had informed that DDA official had de- manded Rs. 15,000/- and also told that he had already spent Rs. 5000/- and thereafter complainant had to pay a bribe of Rs. 20,000/-. He also deposed that after reaching CBI office, the recorded conversation was heard and rough transcript was prepared and thereafter, the SIM card containing conversation was sealed and his signatures were obtained as a witness to the proceedings conducted in CBI office and brass seal was handed over to him. PW-10 identified his signature on the verification memo Ex. PW-5/B (D-2) and the rough transcript Ex. PW-5/H (D-15). He also identified his signature on transcription of conversation of Q-1 Ex. PW-5/H-2 (colly) [part of D-14]. When the memory card Q-1 was CC No. 370/2019 CBI Vs. Ram Karan Page 50 of 88 opened in the court, the witness also identified his signature on the paper cover Ex. PW-5/K and plastic cover already Ex. PW-5/L. When Mem- ory card Q-1 was played in the court, he identified his voice in file no. 170721_1046 which was also reflected in transcript D-14 from point A to A and deposed that his voice was recorded on 21.07.2017 in CBI office. Although, PW-10 in his examination in chief dated 02.12.2019 deposed that final transcript was not prepared in his presence nor recording was played before him and he merely signed the transcript on the basis of what he had heard earlier but when he was cross examined by Ld. Sr. PP on 08.01.2020, he affirmed that the CD containing the conversation dated 21.07.2017 was played by Inspector Ajay Kumar Singh on laptop and he had identified his voice and complainant Nivesh had identified his voice and the voice of accused Ram Karan. In the cross examination by Ld. Defence counsel, PW-10 denied the suggestion that he had not participated in the event narrated by him in his examination in chief and further denied the suggestion that he was a planted witness. He also de- nied the suggestion that Ex. PW-5/H had already been prepared in CBI office or that he had merely signed the same. He had also denied the sug- gestion that he had signed on blank papers which were converted into transcription cum voice identification memo and transcription (D-14) (colly) subsequently by the CBI officials.
30. PW-15 Inspector Shitanshu Sharma has also deposed on similar lines and has further corroborated the version of PW-5 and PW-10 with regard to the verification proceedings conducted on 21.07.2017. He iden- tified the verification memo Ex. PW-5/B (D-2) prepared by him. In the cross examination by Ld. defence counsel, he denied the suggestion that CC No. 370/2019 CBI Vs. Ram Karan Page 51 of 88 he had not participated in any proceedings of the case. He also denied the suggestion that he had never interacted with the complainant or that he had never prepared any verification memo on 21.07.2017 or 28.07.2017. He also denied the suggestion that he had not recommend for registration of FIR after verification on 21.07.2017 as the allegations of the complaint were not substantiated. He denied the suggestion that contents of Micro SD Card Q-1 were fabricated by him with the help of laptop.
31. From the perusal of the testimonies of the aforesaid witnesses, it is clear that neither PW-10 nor PW-15 had heard the conversation which took place between the complainant (PW-5) and accused Ram Karan on 21.07.2017 during verification proceedings. PW-10 himself had admitted that he could not follow the complainant as accused had taken him in a rickshaw which went on fast speed. However, the testimony of PW-10 and PW-15 clearly reflect that after the complainant returned, they all went to CBI office where the complainant had narrated the entire episode and the demand of illegal gratification made by the accused. It is also not in dispute that the recorded conversation was heard by PW-15 Shi- tanshu Sharma in the presence of complainant and PW-10 Prit Pal Singh with the help of DVR and a rough transcript was prepared. The com- plainant as well as PW-10 have identified their signatures on the rough transcript. The perusal of the verification memo Ex. PW-5/B shows that the accused had initially demanded bribe of Rs. 15,000/- and when the complainant tried to negotiate the bribe amount, accused demanded a bribe of Rs. 20,000/- on the pretext that he had already paid Rs. 5,000/- on behalf of the complainant to other officers. This demand of illegal CC No. 370/2019 CBI Vs. Ram Karan Page 52 of 88 gratification is also reflected in the rough transcript Ex. PW-5/H (D-15) on page no. 7 to 10. There is no reason to disbelieve the testimony of PW-5, PW-10 and PW-15 on this aspect. The verification memo and the rough transcript Ex. PW-5/H were prepared by the IO immediately after returning to CBI office and these documents are contemporaneous docu- ments prepared during the verification proceedings. Although, counsel for the accused has tried to dispute the rough transcript Ex. PW-5/H on the ground that on the last page of the transcript, there is an unusual gap between the signatures of the witnesses and the portion where the pro- ceedings have concluded. I have perused the same. Apart from this, no other objection has been raised regarding the genuineness or authentic- ity of the rough transcript Ex. PW-5/H. Merely because there has been some gap between the signatures of the witnesses and the portion where the rough transcript has concluded, it cannot be assumed that the tran- script is manipulated or fabricated document when both the complainant and independent witness have affirmed in their testimonies that the rough transcript was prepared in the CBI office on 21.07.2017 in their presence and they had signed the same before conclusion of the verification pro- ceedings. The gap between the signatures of the witnesses and the con- clusion of the proceedings may have been unintentional as there is not even a suggestion in the cross examination of these witnesses that the rough transcript Ex. PW-5/H was prepared at a later date. Hence, this objection of Ld. Defence counsel is also rejected being devoid of any merits.
In view of the aforesaid discussions, I am of the considered opin- ion that the prosecution has been able to prove that accused had de- manded illegal gratification from the complainant during verification CC No. 370/2019 CBI Vs. Ram Karan Page 53 of 88 proceedings on 21.07.2017.
C. Demand of illegal gratification on 28.07.2017
32. PW-5 Nivesh Aggarwal has deposed in his examination in chief that on 28.07.2017 he received a call from the mobile phone of accused Ram Karan on his mobile phone and he asked the complainant to bring his father's aadhar card and some money to Karkardooma Court but the complainant showed his in ability as he was in Ajmer whereupon ac- cused asked the complainant to send someone else to meet at Karkar- dooma Metro Station. The complainant showed his inability to send someone else on which accused asked him to meet next day. The com- plainant further deposed that he informed CBI about the aforesaid inci- dent. In the cross examination by Ld. Sr. PP dated 11.02.2019 com- plainant admitted that he had handed over the memory card of his mobile phone to the IO on 29.07.2017 along with a signed certificate u/s 65-B of Indian Evidence Act. He also identified his signature on sealing memo of memory card Ex. PW-5/F (D-10) and the certificate Ex. PW-5/G (D-11). In his cross examination by Ld. Sr. PP dated 06.06.2019 PW-5 again ad- mitted that conversation between him and accused Ram Karan on 28.07.2017 was recorded by him in his mobile phone and the same was handed over to CBI. When the memory card Q-3 was produced in the court, complainant identified his signature on the plastic cover and when the memory card was played in the court, complainant also identified his conversation with Ram Karan on 28.07.2017 and deposed that this recording was done in his mobile phone no. 9971745099 when he had received the call from the accused at about 08.30 AM. He also deposed CC No. 370/2019 CBI Vs. Ram Karan Page 54 of 88 that the call was recorded in the memory card of his mobile phone and he had handed over the memory card to CBI. The conversation was marked from point A to A in the transcript of Q-3 Ex. PW-5/H-2 (Colly) at page no. 34 to 36 (part of D-14). In the cross examination, no ques- tion has been put to PW-5 on the aforesaid deposition nor any suggestion has been given that no such incident had taken place or that the call recording in Q-3 was forged and fabricated.
33. PW-15 Shitanshu Sharma in his examination in chief has also de- posed that on 28.07.2017 complainant had informed him that accused had called the complainant and asked him to come to Karkardooma Metro Station and the complainant told the accused that he was in Ajmer and was unable to come whereupon accused told him to send someone else but complainant told him that there was nobody to come and there- after accused directed the complainant to come on 29.07.2017 along with photocopy of aadhar card of his father and also hinted the com- plainant to come with the bribe amount. The complainant had also in- formed PW-15 that he had recorded the conversation with accused in his mobile phone and the complainant was directed to preserve the mobile recording. PW-15 also proved further verification memo Ex. PW-15/A (D-3) wherein these facts had been recorded. PW-15 further deposed that on 29.07.2017 after the CBI team had returned to CBI office after appre- hending the accused in the trap proceedings. TLO seized the memory card of the mobile phone of the complainant containing the recorded conversation between the complainant and the accused and the same was sealed and marked as Q-3.
CC No. 370/2019 CBI Vs. Ram Karan Page 55 of 8834. The recovery memo Ex.PW-5/D (D-6) also corroborates the fac- tum of seizure of memory card from the complainant vide separate seal- ing memo of memory card Ex.PW-5/F(D-10) which was duly witnessed by the complainant, TLO and independent witnesses PW-11 Ritesh Ku- mar and PW-13 Manesh Kumar Kanojia.
35. A careful perusal of testimony of PW-5 would show that he has nowhere deposed that accused had demanded illegal gratification from him during telephonic conversation on 28.07.2017. Even though, PW- 15 Shitanshu Sharma has deposed that complainant had told him that ac- cused had hinted him to bring bribe money on the next day i.e. 29.07.2017, the same is not corroborated either by PW-5 or even by the recorded conversation in Q-3. The only doubtful sentence uttered by the accused during conversation as reflected in the transcript on page 36 is "ha apna vo le aaiyo thik hai". Apart from this there is no sentence from which it could be gathered that the accused had demanded bribe on 28.07.2017 even indirectly. Perusal of the entire conversation of file "Call 08-28-05-In-919968313063" would reveal that the accused had asked the complainant to bring the aadhar card of his father on 28.07.2017 at Karkardooma Court and when the complainant expressed his inability, the accused asked him to bring the signed photocopy of aadhar card of his father on the next day i.e. 29.07.2017. In the context of the entire conversation the words uttered by the accused in between "ha apna vo le aaiyo thik hai" does not necessarily indicate the demand of illegal gratification and there is a possibility that the accused had ut- tered these words in the context of bringing aadhar card of father of the complainant on 29.07.2017. Hence, in my considered opinion the prose-
CC No. 370/2019 CBI Vs. Ram Karan Page 56 of 88cution has not been able to prove the demand of illegal gratification by the accused on 28.07.2017 beyond reasonable doubts and the benefit of the same should be given to the accused.
D. Demand of illegal gratification by the accused during trap pro- ceedings
36. Ld. Sr. PP has argued that the trap proceedings were conducted on 29.07.2017 and perusal of testimony of the witnesses to the trap proceed- ings i.e. PW-5 Nivesh Aggarwal, PW-13 Manesh Kumar Kanojia (shadow witness) and PW-15 Shitanshu Sharma and PW-16 Saminder Singh Gill (TLO) clearly established that accused had demanded illegal gratification from the complainant indirectly. He argued that PW-5 has specifically deposed in his examination in chief that after reaching the Tea Stall in INA market, accused told him "jo kuch tu laya hai aadhar card ki photocopy me rakh kar mere thele ke andar rakh de" where- upon the complainant took out the money and asked the accused to count the same but the accused declined to do so and asked the complainant to count it whereupon complainant counted the currency notes and wrapped them in the copy of aadhar card and handed over to the accused. He ar- gued that PW-13 Manesh Kumar Kanojia has also corroborated the ver- sion of PW-5 and has deposed that after reaching the Tea Stall, accused told the complainant "jo tu laya hai vo de de" whereupon the com- plainant took out the money and asked the accused to count the same but the accused declined to do so and asked the complainant to count it whereupon complainant counted the currency notes and wrapped them in the copy of aadhar card and handed over to the accused and accused ac-
CC No. 370/2019 CBI Vs. Ram Karan Page 57 of 88cepted the money and kept in his bag. Ld. Sr. PP submitted that PW-11 Ritesh Kumar who was with the CBI team, recovered the illegal gratifi- cation of Rs. 15,000/- from the bag of the accused wrapped in the paper and the same were tallied by the witnesses with the numbers of the notes mentioned in the handing over memo which proves that accused had de- manded illegal gratification. PW-15 Shitanshu Sharma has also deposed that after some conversation complainant took out the bribe money and kept it in the copy of aadhar card and same was accepted by the accused who kept in the green bag. He also deposed that PW-11 Ritesh Kumar re- covered the bribe amount from the green bag of the accused kept on the black bag inside green bag. PW-16 S.S. Gill has also deposed that after some conversation, the complainant took out the money and counted the money on the direction of accused and thereafter took out copy of aadhar card and put money in it and gave it to the accused who accepted the same. He also deposed that the activity of the accused and complainant was visible to CBI team.
37. Ld. Counsel for the accused has vehemently argued that there was no demand of illegal gratification by the accused. He argued that the tes- timony of the witnesses are contradictory. PW-5 does not say that money was demanded from him on 29.07.2017. He has also denied the sugges- tion by Ld. Sr. PP in his cross examination that he kept the tainted bribe money in the photocopy of the aadhar card and handed over the same to the accused Ram karan who accepted the bribe with both his hands and kept the bribe amount in his green bag. PW-5 has also denied the sugges- tion that he had counted the bribe amount and told that the amount was Rs. 15,000/- and further denied that he had not told such facts to CBI.
CC No. 370/2019 CBI Vs. Ram Karan Page 58 of 88PW-13 Manesh Kumar Kanojia also does not say that the money was de- manded by the accused.
38. Ld. Defence counsel has argued that since PW-5 was declared hos- tile and only thereafter he accepted the suggestions of Ld. Sr. PP in the cross examination, it would not be construed that he had supported the case of prosecution on the context of demand. He also argued that once PW-5 has been declared hostile and has not supported the case of prose- cution, the testimony of shadow witness i.e. PW-13 does not substitute the essential requirement, required to prove demand as held by Hon'ble Supreme Court in the case of P. Satyanarayana Murthy Vs District In- spector of Police, Andhra Pradesh (supra).
39. Ld. Sr. PP, in rebuttal, has argued that Hon'ble Supreme Court has held in number of cases that merely because a witness is declared hostile by the prosecution, his testimony does not get completely effaced and such evidence remains admissible in trial and there is no legal bar to con- vict the accused on his testimony, if corroborated by other reliable evi- dence. Ld. Sr. PP has placed reliance on the judgment of Vinod Kumar vs State of Punjab (supra) and S.C. Goel Vs State through CBI (supra) in support of his arguments.
40. There is no iota of doubt to the legal preposition laid down by Hon'ble Supreme Court in number of judgments that the testimony of the witness does not get washed away, if he is declared hostile by the prosecution. The court can always look into his testimony as it remains admissible in trial and conviction can be based upon the testimony of CC No. 370/2019 CBI Vs. Ram Karan Page 59 of 88 such witness if the same is corroborated by other reliable evidence. Hence, the proposition sought to be advanced by Ld. Defence counsel that testimony of PW-5 Nivesh Aggarwal cannot be relied upon at all as he has been declared hostile is against the law laid down by Hon'ble Supreme Court. A bare perusal of the judgment relied upon by Ld. De- fence counsel i.e. P. Satyanarayan Murthy (supra) would show that in the said case the complainant had expired before he could appear as a wit- ness during the trial and hence, Hon'ble Supreme Court had held that ev- idence of other witnesses was not sufficient to prove the demand, though recovery was proved and benefit of doubt was extended to the appellant/accused.
41. However, in the present case, the complainant has appeared in the witness box as PW-5 and has also deposed against accused. No doubt, the witness was declared hostile by the prosecution as he was resiling from his previous statement but during his cross examination, the com- plainant (PW-5) has fully supported the case of prosecution in all mate- rial particulars except for some minor discrepancies here and there. Even in the cross examination by Ld. Defence counsel the witness has denied all the suggestions that accused did not demand illegal gratifica- tion or that the accused did not accept the illegal gratification or that ac- cused has been falsely framed in the case. It is not expected of a public witness to remember, recall and narrate all the events in a sequence as they might have happened because it is a well known fact that memory of a human being fades with the passage of time and it is not possible to remember all the minute details even after a lapse of time. Perusal of tes- timony of PW-5 would show that he has narrated the incident which CC No. 370/2019 CBI Vs. Ram Karan Page 60 of 88 took place in his cross examination by Ld. Sr. PP which would show that PW-5 is not a hostile witness in the sense that he has denied the case of the prosecution entirely. Hence, in my considered opinion the testimony of PW-5 can be relied upon if corroborated by other reliable evidence.
42. Apart from the testimony of PW-5 as noted above, the demand of the illegal gratification by the accused at the time of trap proceedings is also proved by the testimony of PW-13 Manesh Kumar Kanojia, PW-15 Inspector Shitanshu Sharma and PW-16 Saminder Singh Gill who have corroborated the version of PW-5 regarding the indirect demand made by the accused during the trap proceedings. There is no reason to disbelieve the testimonies of these witnesses who have no concern, or relation with either the complainant or the accused.
43. The demand of illegal gratification by the accused is further cor- roborated by the recorded conversation in the Micro SD Card Q-2 Ex. PW-11/H (colly). When the same was played in the court, PW-11 and PW-13 identified their introductory voices in file no. 170729_1052 and file no. 170729_1054 respectively and the same was also reflected in the transcript of Q-2 Ex. PW-5/H-2 at page no. 20 (part of D-14).
44. Similarly, PW-5 Nivesh Aggarwal has identified his voice as well as the voice of the accused in the Micro SD card Q-2 Ex. PW-11/H in file no. 170729_1124 and file no. 170729_1209 which was also reflected in the transcript of Q-2 Ex. PW-5/H-2 (colly) (part of D-14) from point Y to Y at page no. 20-21 and from point Z to Z from page no. 21-33.
CC No. 370/2019 CBI Vs. Ram Karan Page 61 of 8845. Although, Ld. Defence counsel has taken objection to the admissi- bility and authenticity of the transcripts on the ground that the same were prepared from the CDs which were obtained by the IO from CFSL and those CDs were not produced in the court nor there hash values were provided. He has also objected to the opinion given by PW-14 Dr. Sub- rat Kumar Chaudhary. However, all those objections have been consid- ered and rejected in the foregoing paras and the same are not required to be discussed in details again. However, it may be suffice to note that the original Micro SD cards containing the conversation between the ac- cused and the complainant have been produced and played in the court. The makers of the recordings (voice conversations) i.e. PW-5, PW-10, PW-11 and PW-13 have appeared in the witness box and had identified their voices. PW-5 has also identified the voice of the accused in Q-1 as well as Q-2 and there is no reason to doubt his testimony regarding iden- tification of voice of the accused as he had been dealing with the accused for almost more than one year and was the best person to identify the voice of the accused. The report of PW-14 Dr. Subrat Kumar Chaudhary Ex. PW-14/B is not a substantial evidence but the same is merely a cor- roboratory piece of evidence. Once the voice of the accused has been identified in the court by the complainant, the report of PW-14, even if ignored, would not diminish the value of the testimony of the com- plainant on this aspect.
46. Hence, in view of the oral testimonies of PW-5, PW-11, PW-13, PW-15 and PW-16 as noted above and the electronic evidence in the form of Micro SD Cards Q-1 and Q-2, I am of the considered opinion that the prosecution has proved demand of illegal gratification by the ac-
CC No. 370/2019 CBI Vs. Ram Karan Page 62 of 88cused beyond reasonable doubt.
ACCEPTANCE OF ILLEGAL GRATIFICATION BY ACCUSED
47. Now I shall deal with the issue of acceptance of illegal gratifica- tion by the accused.
48. Ld. Sr. PP has argued that acceptance of illegal gratification by ac- cused Ram Karan has been proved by PW-5 Nivesh Aggarwal who has clearly deposed in his testimony dated 11.02.2019 that on the instruction of the accused, he had wrapped the tainted bribe amount in the photo- copy of the aadhar card and then put the same in the bag of the accused. Further during the cross examination by Ld. Sr. PP, PW-5 testified that he had informed the officials of CBI that he had kept the tainted bribe amount in the photocopy of aadhar card and handed over to the accused Ram Karan who accepted the same with both his hands and kept the amount in the green bag. It was further argued that PW-13 Manesh Ku- mar Kanojia has also deposed that the complainant counted the money and offered it to the accused saying that the same was Rs. 15,000/-, the accused asked the complainant to put the money in the paper and give it to him. The complainant kept the money in the paper and gave to the ac- cused. The accused accepted the money and kept the same in the bag which was brought by him. Ld. Sr. PP further submitted that PW-16 TLO Saminder Singh Gill in his testimony has also deposed that the com- plainant was talking with the accused and after sometime complainant took out money to give it to the accused. The complainant counted the money on the direction of the accused and thereafter took out copy of CC No. 370/2019 CBI Vs. Ram Karan Page 63 of 88 aadhar card from his right pocket of the pant and put the money on the copy of the aadhar card and gave it to accused which was accepted by the accused with his both hands and he kept the same in his bag. Ld. Sr. PP also submitted that PW-15 Sh. Shitanshu Sharma in his testimony dated 30.11.2021 has deposed that it was seen that the accused, com- plainant and independent witness sat at a Tea Stall in INA Market. After some conversation complainant took out the bribe amount and kept in the copy of the aadhar card and the same was accepted by the accused who kept the same in the green bag carried by him. It was argued that the testimonies of these witnesses clearly established that accused had accepted the illegal gratification of Rs. 15,000/- from the complainant.
49. Per Contra, Ld. Defence counsel has argued that there are contra- dictions in the testimony of PW-5 which makes his testimony unreliable. He also argued that the testimony of PW-13, PW-15 & PW-16 are also not up to the mark. It was argued that PW-5 Nivesh Aggarwal deposed on 11.02.2019 in his examination in chief that he had put the bribe amount in the bag of the accused but when he was cross examined by Ld. Sr. PP, he denied the suggestion that he had handed over the bribe amount to accused Ram Karan who accepted the same with his both hands and kept the same in his bag and in the very next lines he deposed that he had told CBI officials that he had handed over the bribe amount in the photocopy of aadhar card which was accepted by him with both his hands. He also argued that PW-5 has also denied the suggestion that he had counted the bribe amount and told that the amount was Rs. 15,000/- whereas prior to it, PW-5 had deposed that he had asked the ac- cused to count the bribe amount but accused declined and asked the com-
CC No. 370/2019 CBI Vs. Ram Karan Page 64 of 88plainant to count the same. Ld. Defence counsel also argued that if the accused had counted the bribe money which was smeared with phe- nolphthalein powder and then kept the same in the copy of aadhar card and wrapped it and handed over the same to the accused who accepted amount with both his hands then the hands of the accused should also have the traces of phenolphthalein powder on them but the TLO did not take any hand wash of the accused which creates doubt in the story of the prosecution. It was also argued that as per PW-16 the activities of the accused and complainant was visible to the CBI team then in such cir- cumstances non obtaining of hand wash of the accused creates a serious doubt about the conduct of the TLO. It was also argued that accused in his statement u/s 313 Cr.P.C has denied having accepted any illegal grat- ification and has taken a plea that he was falsely frame in the case.
50. I have carefully perused the testimony of the complainant PW-5 Nivesh Aggarwal. As already stated above, there are some minor dis- crepancies in the testimony of PW-5 but at the same time he has categor- ically deposed that accused had accepted the bribe and kept the same in his green coloured bag. His testimony on these aspects is also corrobo- rated by the oral testimonies of shadow witness PW-13 Manesh Kumar Kanojia, PW-15 Shitanshu Sharam and PW-16 Saminder Singh Gill. None of these witnesses have deposed that accused expressed any hesita- tion or reluctance to accept the money offered by the complainant. It is also clear from the testimony of these witnesses that the money was re- covered from the bag of the accused. Hence, the question whether com- plainant had put the money in the bag of the accused or accused had ac- cepted the money with his hands and put it in his bag looses its rele-
CC No. 370/2019 CBI Vs. Ram Karan Page 65 of 88vance. The accused has not denied his presence at tea stall at INA Mar- ket where the trap proceedings had taken place. He has also not denied the fact that the green bag from which the bribe money was recovered belongs to him. Perusal of the transcript Q-2 Ex.PW-5/H-2 (part of D-
14) also shows that when the complainant informed the accused that he had not counted the money and offered the accused to count the same, the accused declined to count the same and asked the complainant to count it and thereafter the complainant counted the same and offered it to the accused. This also corroborates the version of PW-13 and PW-16 that complainant had counted the money on the asking of the accused. The conduct of the accused in asking the complainant to count the money clearly establishes that he was conscious of the fact that he was about to accept illegal gratification and he did not want to touch the currency notes, lest he may fall in some trap. Hence, he asked the complainant to wrap the currency notes in the copy of aadhar card brought by com- plainant. When these facts are considered in totality, no other conclusion can be drawn except that accused was conscious of the nature of the transaction and he accepted the bribe money very carefully and cau- tiously.
51. The argument advanced by Ld. Defence counsel that hand wash of the accused or of the green bag carried by the accused was not taken by the TLO which vitiates the proceedings and creates a doubt in the in- vestigation conducted by the TLO is also without any substance. Hon'ble Supreme Court in Mukhtiyar Singh Vs State of Punjab (supra) has held that when demand, acceptance and recovery of incriminating currency notes from the accused sufficiently proved, the objection that CC No. 370/2019 CBI Vs. Ram Karan Page 66 of 88 the reliability of the trap was impaired as the solution collected in the phial, was not sent to the Chemical Examiner is too puerile for accep- tance. It was further held that the phenolphthalein solution is used not because of any direction by statutory provision, but for the satisfaction of the official that the suspected public servant would have really handled the bribe money.
In the present case also the acceptance of bribe money by the ac- cused has been sufficiently proved by the prosecution not only through direct evidence but also through circumstantial evidence. Hence, absence of hand wash of the accused or wash of green bag of the accused does not cause any prejudice to the accused.
52. Hence, in view of the aforesaid discussions, I am of the considered opinion that the prosecution has sufficiently proved that accused Ram Karan accepted illegal gratification of Rs. 15,000/- from the complainant Nivesh Aggarwal.
Recovery of illegal gratification from the possession of the ac- cused
53. Ld. Sr. PP for CBI has argued that the recovery of illegal gratifica- tion from the possession of the accused has been proved by PW-11 Ritesh Kumar who had recovered the bribe money from the green bag of the accused. His version has been corroborated by PW-5 Nivesh Aggar- wal, PW-13 Manesh Kumar Kanojia, PW-15 Shitanshu Sharma and PW- 16 Saminder Singh Gill. Ld. Sr. PP further argued that these witnesses also proved that the wash of the black bag where bribe money was kept CC No. 370/2019 CBI Vs. Ram Karan Page 67 of 88 by the accused was taken at the spot and the said solution turned pink and the solution was sealed in glass bottle with the CBI seal at the spot. Ld. Sr. PP further argued that PW-6 V.B. Ramteke has proved his report dated 30.10.2017 Ex.PW-6/B (D-21) which gave positive test for the presence of phenolphthalein. PW-6 also proved the bottle in the court as Ex. PW-6/Art.-1, the envelope bearing his signature as Ex. PW-6/Art.-2 and clothe wrapper bearing his initial as Ex. PW-6/Art.-3.
54. Per Contra, Ld. Defence counsel has vehemently argued that no recovery was effected from the possession of the accused. He argued that the oral testimony of the witnesses does not inspire any confidence as they are per-se contradictory. He has further argued that no wash of the green bag in which the money was allegedly kept by the accused was ever taken. He also argued that no search of the green bag of the accused was conducted. He argued that had the TLO or the independent wit- nesses conducted the search of the bag of the accused, the personal arti- cles of the accused which were present inside the bag would have found mention in the recovery memo Ex. PW-5/D (D-6) prepared by the TLO but the recovery memo does not mention about recovery of any such personal articles of the accused. However, when the green bag of the ac- cused was opened before the court during the testimony of PW-11 on 16.12.2019, it was observed that the green bag also contained personal articles of the accused including cash of Rs. 6,000/-, few coins, passbook of saving bank account of the accused, ID card of the accused issued by DDA, Salary slip, few medicines, one plastic spoon, one key and one pen of the blue colour which were kept separately in an envelope and were exhibited as Ex. PW-11/F-3.
CC No. 370/2019 CBI Vs. Ram Karan Page 68 of 88Ld. Defence counsel has further argued that the black bag al- legedly found inside the green bag did not belong to the accused and ac- cused in his statement recorded u/s 313 Cr.P.C has specifically denied the recovery of bribe money from him and also that the black bag did not belong to him and it was never kept or recovered from his green bag.
55. Ld. Counsel for accused has further argued that the TLO did not attempt to join any independent witness during the trap proceedings from the INA market despite presence of public persons at the spot which raises a serious doubt on the trap proceedings. He also argued that de- spite alleged recovery of the bribe money from the possession of the ac- cused at the spot, the accused was not arrested at the spot but he was ar- rested much later in the evening in CBI office which also shows that ac- cused has been falsely implicated.
56. Before proceeding further, I deem it appropriate to briefly repro- duce the testimony of the witnesses of the trap team on the point of re- covery of bribe amount from the accused.
Perusal of the testimony of the witnesses to the trap team shows that PW-5 Nivesh Aggarwal in his examination in chief dated 11.02.2019 has specifically deposed that after he informed the CBI team about the acceptance of bribe amount by the accused, the CBI team reached there and inquired about the acceptance of money from GST Inspector which he replied in affirmative and thereafter one of the CBI Inspector recov- ered the said amount of Rs. 15,000/- from the green coloured cloth bag of the accused Ram Karan. He further deposed that thereafter CBI team checked the recovery with chemical. Since the witness could not recall CC No. 370/2019 CBI Vs. Ram Karan Page 69 of 88 as to what proceedings took place thereafter, he was cross examined by Ld. Sr. PP for CBI. In the cross examination by CBI, PW-5 admitted the recovery memo Ex. PW-5/D (D-6) was prepared by the CBI in his pres- ence. He also identified his signature on the site plan Ex.PW-5/E(D-7) prepared at the spot. In his further cross examination, he admitted that on the directions of CBI officer, witness Ritesh Kumar had recovered the bribe money from the green bag having impression F-Fashion. However, he could not recall if the said bag was seized by CBI or that he had told the IO that green bag having black bag inside it was kept in white cloth and was sealed with the CBI brass seal. PW-5 admitted that the tainted bribe amount and photocopy of aadhar card was kept in an envelope and was sealed which was signed by him.
During his cross examination on 06.06.2019, PW-5 admitted that the wash of upper side of black bag was taken in a colourless solution of sodium carbonate and the said solution turned light pink. He also admit- ted that the said solution was kept in a bottle and was sealed and he along with TLO and both the independent witnesses signed on the inner side of the black bag and white paper slip was also stapled on the said black bag and his signatures were appended on the paper slip and there- after the black bag was folded and kept in green bag and the bag was kept in white clothe and sealed with the CBI seal. PW-5 further admitted that the recovered bribe amount was tallied by both the independent wit- nesses from handing over memo at the spot and they had signed on the handing over memo after tallying the bribe amount at point B and C on the handing over memo Ex. PW-5/H-1(D-5). He also admitted that the signatures of both the independence witnesses were taken on the photo- copy of the aadhar card. He also admitted that the tainted bribe amount CC No. 370/2019 CBI Vs. Ram Karan Page 70 of 88 and the photocopy of the aadhar card were kept in the brown envelope and was sealed with the brass seal and it was signed by him along with both the independence witnesses and TLO. In his cross examination dated 26.03.2021, PW-5 identified his signatures on the brown envelope Ex. PW-11/C containing the bribe money and the photocopy of aadhar card of his father. He also identified the currency notes Ex. PW-11/D (colly) after comparing their numbers mentioned in the handing over memo as the same which were used in the trap proceedings and later on recovered from the possession of the accused. He also identified the photocopy of the aadhar card of his father Bhushan Prakash Ex.PW-11/E bearing his signature at point B. PW-5 also identified the green coloured bag having logo "F-Fashion" with zip Ex. PW-11/F-1 and black coloured bag with print of Palm Trees Ex.PW-11/F-2 when produced in the court. He also identified his signature at point B on the paper slip stapled on the black bag and his signature at point A on the inner side of the black bag and deposed that the same were recovered from the posses- sion of the accused and the black bag was inside the green bag and trap money was kept over the black bag.
During the cross examination by Ld. Counsel for the accused, PW- 5 has categorically denied that no wash of any bag was taken by any CBI official or that no recovery of money was done in a manner as admitted by him in the cross examination dated 06.06.2019. He also deposed that the recovery memo Ex. PW-5/D was signed by him in the CBI office in the night of 29.07.2017. He further admitted that the bag of the accused was searched on the bench itself after his apprehension but he could not recall about some medicines with other articles having been recovered from the bag of the accused. PW-5 also denied the suggestion that the CC No. 370/2019 CBI Vs. Ram Karan Page 71 of 88 bag of the accused was searched at the tea stall. He also denied the sug- gestion that the bag of the accused was searched only in CBI office or that the only articles recovered from the bag of the accused were cash of Rs. 6,000/-, few coins, passbook of saving bank account of the accused, ID card of the accused issued by DDA, Salary slip, few medicines, one plastic spoon, one key and one pen of the blue colour. He also denied the suggestion that he had not signed the documents on the dates ap- pended below the documents or that he had made false and incriminating statement against the accused.
57. PW-11 Ritesh Kumar has also deposed in his examination in chief that on opening the bag, he found Rs. 15,000/- wrapped in the paper. The currency notes were taken out and were tallied with the numbers men- tioned in the handing over memo. He further deposed that the currency notes were kept in envelope and were sealed. The bag carried by the ac- cused was also having another bag over which the trap money was found. The said black coloured bag was taken out and dipped/washed in sodium carbonate solution and the solution turned pink and the solution was transferred in glass bottle. He further deposed that the copy of the aadhar card in which the money was wrapped was also sealed. PW-11 has also identified his signature on handing over memo Ex. PW-5/H-1 (D-5) and further identified his signature at point C on page 4 of the handing over memo where distinctive numbers of currency notes were mentioned and deposed that he had put his signature after tallying the numbers of currency notes. The witness further identified his signature on the recovery memo Ex.PW-5/D and the site plan Ex. PW-5/E. PW- 11 also identified the currency notes Ex. PW-11/D and copy of aadhar CC No. 370/2019 CBI Vs. Ram Karan Page 72 of 88 card Ex. PW-11/E when the same were produced in the court. He also identified the green bag Ex. PW-11/F-1 and black bag Ex. P W-11/F-2 produced in the court. He also identified his signature on the paper slip stapled on the black bag and deposed that the black bag was inside the green bag and trap money was kept over the black bag.
In the cross examination by counsel for the accused, PW-11 has denied the suggestion that no recovery was made by him or that he had never handled the bag for the purpose of conducting of any search. He further deposed that in his presence no money or other articles were re- covered except for the trap money of Rs. 15,000/- and volunteered that the entire bag Ex. PW-11/F-1 was not searched in his presence. He de- nied the suggestion that since the bag Ex. PW-11/F-1 was never searched, therefore, the contents of the said bag which were available in it and found in the court proceedings were not recovered or seized on 29.07.2017. He also denied the suggestion that no wash took place in his presence. He further deposed that recovery memo Ex. PW-5/D was signed by him after they had returned back to CBI office along with the accused. He could not recall that if single or multiple copies of recovery memo was prepared or he had signed on single copy or multiple copies. He also denied the suggestion that he had signed all the documents ante- dated or without participating in the proceedings.
58. PW-13 Manesh Kumar Kanojia who was acting as a shadow wit- ness during the trap proceedings has also corroborated the version of the complainant and PW-11 has deposed that Ritesh Kumar was asked to take out the money from the bag and counted. The money was kept above another bag kept in the bag of the accused. The CBI team had CC No. 370/2019 CBI Vs. Ram Karan Page 73 of 88 taken wash of the said bag and the colour of the solution changed to pink and the wash was sealed in the bottle and the bag was also taken in pos- session. PW-13 identified his signature on handing over memo Ex. PW-5/H-1 on each page and also identified his signature at point C-1 on page 4 of the memo and deposed that he had put his signature at point C- 1 when serial numbers of currency notes were produced by the com- plainant were mentioned and checked. PW-13 also identified his signa- ture on recovery memo Ex. PW-5/D and site plan Ex.PW-5/E. He also identified his signature on the brown envelope Ex. PW-11/C containing the trap money and copy of aadhar card. He identified the currency notes Ex. PW-11/D (colly) produced in the court after comparing their distinctive numbers mentioned in the handing over memo Ex.PW-5/H- 1(D-5) and deposed that these were the same currency notes which were given by complainant to the accused wrapped in the copy of aadhar card and were later on recovered from the possession of the accused. He also identified his signature on the copy of the aadhar card Ex.PW-11/E. He further identified the green coloured bag Ex. PW-11/F-1 and black coloured bag Ex. PW-11/F-2 when produced in the court. He also identi- fied his signature on the paper slip stapled on the black bag and deposed that he identified the bag as the same was recovered from the possession of the accused. The black back was inside the green bag and the trap money was kept over the black bag.
During his cross examination, PW-13 has denied the suggestion that he had never seen the copy of aadhar card of the father of com- plainant either at tea shop or anywhere around the DDA office. He also denied the suggestion that he had been participating the activities of CBI as a witness. He further deposed that CBI officials had not conducted CC No. 370/2019 CBI Vs. Ram Karan Page 74 of 88 the search of the bag of the accused in CBI office and deposed that the bag of the accused was searched at the spot by PW-11 Ritesh Kumar. He further admitted that during search of the bag of the accused, one pass- book of saving account of accused, Rs. 6,000/- few coins, one ID card of accused and salary slip were recovered from the bag but again said the he did not remember the details. He also admitted that the money shown to him at the spot was wrapped in a paper which was the signed copy of the aadhar card of the father of the complainant. He also admitted that the recovery memo Ex. PW-5/D and arrest memo of the accused Ex. PW- 11/B were prepared in CBI office. He denied the suggestion that accused was picked up by CBI officials and was taken to CBI office and from there only his wife was informed about his arrest. He denied the sug- gestion that he had not participated in the proceedings or that he was a planted witness.
59. PW-15 Shitanshu Sharma has also deposed that the independence witness Ritesh Kumar was directed to recover the tainted amount and he recovered the same which was kept on the black bag inside the green bag. The copy of aadhar card was also recovered. The TLO directed the independence witness to tally the serial number of currency notes recov- ered with the handing over memo and the same matched in totality. Thereafter, the TLO took the wash of the black bag which turned pink and thereafter the wash was sealed in glass bottle. Thereafter, recovered tainted bribe amount along with copy of aadhar card were sealed in a brown envelope and was signed by TLO and independent witnesses. The bags were also sealed at the spot.
In his cross examination by Ld. Defence counsel, PW-15 has de-
CC No. 370/2019 CBI Vs. Ram Karan Page 75 of 88nied the suggestion that he never participated in any proceedings of this case. He also deposed that the public persons had not interfered in the proceedings at tea stall at INA market during the apprehension of the ac- cused. He also denied the suggestion that arrest of the accused was made at CBI office as there was no incriminating evidence found against the accused at the tea stall or at DDA Office. He also denied the suggestion that the bag of the accused was never searched at the spot or that at no point of time any projected bribe money was recovered from the bag of the accused. He also denied the suggestion that only the personal articles were recovered from the green bag of the accused and deposed that the trap team had also recovered the tainted bribe amount from the bag of the accused. He could not recall if the personal articles were recovered from the bag of the accused or not and deposed that the bag was sealed at the spot but no separate bag sealing memo was prepared at the tea stall or DDA office but these proceedings were mentioned by the TLO in the re- covery memo.
60. PW-16 Inspector Saminder Singh Gill has also deposed on the similar lines and testified that on his instructions, Ritesh Kumar recov- ered the bribe amount from the bag of the accused which was lying above the black coloured bag inside the green bag. The currency notes were counted and their denomination were checked and tallied by both the independent witness with the handing over memo and the same were found matching. The tainted money along with copy of aadhar card were sealed in a brown colour envelop and wash of the portion of black colour bag was also taken and the pink solution was sealed in a bottle which was signed by independence witness. He also deposed that the portion of CC No. 370/2019 CBI Vs. Ram Karan Page 76 of 88 the black bag from where wash was taken, was also signed by him and independence witnesses and one slip was also affixed on the bag which was signed by him, independence witnesses and complainant. The black bag was put inside the green bag and the same was sealed in a clothe par- cel. He also identified his signature on arrest cum personal search memo of the accused Ex. PW-11/B. He also deposed that the site plan Ex. PW- 5/E was prepared by Inspector Harnam Singh and identified his signa- ture. The witness also identified the currency notes Ex. PW-11/D pro- duced in the court.
61. In the cross examination conducted by counsel of the accused, PW-16 denied the suggestion that all the documents and articles seen by him in the court except Ex. PW-8/A were fabricated after picking up the accused from the area near DDA office. He also denied the suggestion that tainted money was neither kept in the bag of the accused nor recov- ered from the bag of the accused as detailed in recovery memo Ex. PW- 5/D. He deposed that he was not aware that the green bag of the accused contained personal articles of the accused (mentioned in the foregoing paras) as he had not conducted the search of the bag of the accused. He also denied the suggestion that there was no black bag inside the green bag or that he had falsely mentioned in the recovery memo that black bag and currency notes were recovered from the green bag of the accused or that recovery was made by Ritesh Kumar. He also denied the suggestion that no bag wash was ever prepared by him. He also denied the sugges- tion that site plan Ex.PW-5/E is not correct as per site. He deposed that he had not summoned any person from nearby shop to witness the recov- ery as he did not deem it necessary. PW-16 also denied the suggestion CC No. 370/2019 CBI Vs. Ram Karan Page 77 of 88 that he had used the phenolphthalein powder unauthorizedly in the present case for the preparation of false bag wash for using in the case.
62. Thus, from the perusal of the aforesaid testimony of the witnesses, it is clear that all the witnesses have categorically deposed that the bribe amount of Rs. 15,000/- was recovered from the green bag of the accused. They have also deposed that the bribe amount was wrapped in copy of aadhar card of father of the complainant and was kept above the black bag which was kept inside the green bag of the accused. TLO has also taken the bag wash of the black bag which has been duly proved by PW- 6 showing the presence of phenolphthalein. The argument of the counsel for the accused that the black bag did not belong to the accused or it was not kept in the green bag at any point of time is devoid of any substance. No suggestion has been given to any of the witnesses that the black bag did not belong to the accused. The accused has further failed to explain as to how the black bag reached inside his bag without his knowledge when his bag was already having zip for keeping it close and it was not an open bag in which anyone could have put any article surreptitiously.
63. The argument of counsel for the accused that the TLO did not take the wash of the green bag from which trap money was recovered and it vitiated the trap proceedings also does not have any merits in it. All the witnesses have categorically deposed that the trap money wrapped in copy of aadhar card was lying over the black bag inside the green bag when it was recovered by PW-11. Hence, there was no reason or occa- sion for TLO to take bag wash of the green bag.
CC No. 370/2019 CBI Vs. Ram Karan Page 78 of 8864. Ld. Counsel for the accused argued that TLO had not joined inde- pendent witnesses from the spot at the time of recovery which makes the recovery doubtful and vitiate the trap proceedings. Even this argument does not hold any ground as the TLO had already arranged independent witnesses i.e. PW-11 and PW-13 before starting for the trap proceedings. The testimony of these witnesses cannot be discarded merely on the ground that they are government officials or that they were summoned by the TLO before hand. Even otherwise, from the testimony of these witnesses nothing has come out to show that they knew the complainant or the accused before hand. Hence, the question of their being biased against the accused, does not have any substance in it.
65. Ld. Counsel for accused has also challenged the recovery of the bribe amount from the bag of the accused on the ground that the bag of the accused contained his personal articles but the same have not been mentioned in the recovery memo. It was also argued that TLO himself has admitted that he had not conducted the search of the accused which again raises a doubt that accused has been falsely implicated in the case. Once again, I do not find any merits in this argument. It is not the case of prosecution that the bag of the accused was searched by TLO at any point of time during the trap proceedings. In fact, as per the case of prosecution, the bribe money was recovered by PW-11 Ritesh Kumar during the trap proceedings on the instructions of the TLO. Mere fact that after recovery of the bribe money, the TLO did not thoroughly search the bag of the accused would not vitiate the trap proceedings in any manner. The discovery of personal articles from the bag of the ac- cused when the same was produced and opened in the court would rather CC No. 370/2019 CBI Vs. Ram Karan Page 79 of 88 confirm the fact that no tampering with the evidence was done by the TLO and that the bag was sealed at the spot as has been deposed by the members of trap team. Hence, this argument raised by Ld. Defence counsel is also rejected being devoid of any merits.
66. Ld. defence Counsel has further challenged the recovery from the accused on the ground that the recovery memo was not prepared at the spot or at DDA office and also because the accused was not arrested at the spot. It has been argued that the preparation of the recovery memo and arrest of the accused in the CBI office shows that no incriminating evidence was found against the accused at the spot and he has been falsely implicated. I do not find any merits in this argument. Prosecu- tion witnesses have fairly admitted in their depositions that the recovery memo was prepared in the CBI office after they had returned back. TLO had also admitted that the arrest of the accused was made in the CBI of- fice. Perusal of the arrest cum personal search memo of the accused shows that the accused was arrested at about 07.00 PM. As per the testi- mony of the witnesses, the accused was apprehended at INA at around 02.00 PM. It is also matter of record that after apprehension of the ac- cused, the trap team had also gone to DDA office for conducting search of the file in question and had left the DDA office in the evening hours after collecting the necessary file and documents.
67. It is not a mandatory requirement of law that recovery memo or the arrest memo of the accused should always be prepared at the spot. Unless there is unreasonable and unexplained delay in preparing such document, no adverse inference can be drawn for not preparing the re-
CC No. 370/2019 CBI Vs. Ram Karan Page 80 of 88covery memo at the spot or arresting the accused at the spot. In the present case, there has been no unnecessary or unreasonable delay in pre- paring these documents. It is a matter of fact that preparation of docu- ments takes its own time and IO is the best judge to decide as to where such documents should be prepared. If the IO, in his discretion has de- cided to first complete the investigation by collecting the documents from DDA office instead of preparing the recovery memo or arresting the accused, the court should not question the discretion of the IO unless such discretion found to be whimsical or arbitrary. In the present case, I do not find any reasons to doubt the discretion of the IO in preparing the recovery memo and arresting the accused in CBI office to be unreason- able, whimsical or arbitrary. Rather, perusal of the records shows that these documents have been prepared by TLO within a reasonable period of apprehension of the accused and without any unnecessary delay. Hence, the argument advanced by Ld. Defence counsel is hereby re- jected.
In view of the aforesaid discussion, I am of the considered opinion that prosecution has proved beyond reasonable doubts that the bribe money was recovered from the possession of accused Ram Karan.
MOTIVE
68. Ld. Sr. PP has argued that accused Ram Karan was dealing with the file of the father of the complainant Nivesh Aggarwal and he had the motive to demand the bribe amount from the complainant. He further ar- gued that PW-12 Ram Narain has proved on record that accused was working as UDC Lab (Res.) of DDA and he was custodian of the file. PW-12 also proved the order dated 08.03.2017 Ex. PW-8/B [D-8 (ii)] CC No. 370/2019 CBI Vs. Ram Karan Page 81 of 88 vide which accused was allocated the area of Yamuna Vihar and the file pertaining to property no. C-7/194, Yamuna Vihar, Delhi for conversion of leasehold property to freehold property as Ex. PW-8/C [D-8(iii)]. He also proved the application for conversion of leasehold property to free- hold property submitted by Bhushan Prakash as Ex. PW-12/B (colly).
69. Ld. Sr. PP further argued that accused has not led any evidence in defence and has taken general plea of false implication in his statement u/s 313 Cr.P.C. He further argued that once the prosecution has proved the ingredients of demand, acceptance and recovery of bribe from the possession of the accused, presumption u/s 20 of PC Act, 1988 will be drawn against the accused that he accepted the bribe money as a motive or reward for clearing the file of the complainant. Ld. Sr. PP has also placed reliance on the judgment of Madhukar Bhaskar Rao Joshi Vs State of Maharashtra (supra) in support of his arguments.
70. Ld. Defence counsel has vehemently argued that the accused nei- ther demanded any money from the complainant nor there was any mo- tive to demand bribe from the complainant. He argued that complainant has falsely implicated the accused as his file was not getting cleared and the accused was the lowest rung official involved in the process. He ar- gued that the complainant has himself admitted that formalities were not completed on the date of filing of the complaint as he had deposited one left over document i.e. indemnity bond on 25.07.2017. He further argued that immediately after deposit of indemnity bond, the accused had al- ready cleared the file on 28.07.2017 and his superior officers had sent the file for dispatch. Hence, there was no occasion for the accused to de-
CC No. 370/2019 CBI Vs. Ram Karan Page 82 of 88mand bribe after submission of indemnity bond on 27.07.2017 Ex. PW- 12/E and only requirement raised by the superior officers of the accused was production of aadhar card by the allottee and the copies of con- veyance deed papers stood already prepared on record and ready for dis- patch by Assistant Director (LA) vide Ex. PW-12/F. He also argued that perusal of the file Ex. PW-8/A would show that the notesheet 21/N to 24/N from 30.12.2016 to 17.03.2017, the requisite challans mentioned in the notesheet 21/N could not be found with respective department of DDA. Notesheet 25/N would show that the wife of the allottee Bhushan Prakash appeared in public hearing along with the complainant and pro- duced the original challan dated 12.09.1975 and receipt dated 31.07.1976 and proposal to seek indemnity bond was initiated by the accused on29.03.2017 which was not approved by the competent authority and on 31.03.2017 it was directed that request of the verification of payment be again sent to Accounts Branch. Notesheets 26/N to 27/N states that proposal to seek indemnity bond w.r.t the payment which could not be verified by the Account Branch may be accepted and amount of premium on leasehold is shown as Rs. 4200/- and this noting dated 05.06.2017 was put up for further approval. Notesheets 28/N and 29/N showed ap- proval sheets for conversion with supporting documents as aadhar card which were found checked as on 21.06.2017 by the accused and the same stood approved by Director (RL) on 05.07.2017. Notesheet 30/N showed the movement of file from 06.07.2017 to 27.07.2017, ending with the note of the accused placing the file before his superior officers stating that the allottee had submitted the I-Bond and AD/LA may see and sign CD papers. Thereafter, the concerned authority i.e. PW-8 Narender S. Bhati had approved the same and sent the file to dispatch.
CC No. 370/2019 CBI Vs. Ram Karan Page 83 of 88Ld. Defence counsel has also argued that 20/C to 26/C correspondence reflect that PW-8 had prepared the forwarding letter with duly filled up conveyance deed which were thereafter required to be signed.
Ld. Defence counsel has argued that perusal of the movement of the file would show that accused had acted diligently and had not created any obstruction and impediment in clearing the file at the earliest. He further argued that PW-16 did not go through the file Ex. PW-8/C care- fully before arresting the accused and in his cross examination, he has admitted that he had not gone through the file noting dated 27.07.2017 and 28.07.2017 and the contents of 20/C to 32/C of the DDA file. It was argued that had the TLO gone through the file, he would have come to the conclusion that there was not motive of the accused to demand bribe from the complainant.
71. A careful perusal of the file Ex. PW-8/C, particularly the notings pointed out by ld. Defence counsel, no doubt shows that considerable time was wasted by the DDA officials in verification of the challans/re- ceipt submitted by the allottee and the movement of the file remained stalled as those challans/receipts could not be verified. It was only after the mother of the complainant and complainant appeared in a public hearing that some progress was made in the file. However, this itself is not a ground to presume that accused had no motive to demand bribe from the complainant simply because the file had been sent to dispatch on 28.07.2017. As already held in the foregoing paras, the accused had been consistently demanding bribe from the complainant for clearing of the file as is also reflected in the testimony of the witnesses. The de- mand of bribe by the accused on 29.07.2017 has also been duly proved CC No. 370/2019 CBI Vs. Ram Karan Page 84 of 88 by the prosecution. The prosecution has further proved the acceptance of bribe by the accused and recovery of the bribe amount from the green bag of the accused by direct oral evidence of the eye witnesses. Hence, the question of motive looses its significance. Even otherwise, as pointed by Ld. Sr. PP for CBI, Hon'ble Supreme Court in Madhukar Bhaskarrao Joshi Vs State of Maharashtra (supra) has held that "once the prosecu- tion has established that gratification in any form cash or kind has been paid or accepted by public servant, the court is under a legal compul- sion to presume that the said gratification was paid or accepted as a mo- tive or reward to do (or forbear from doing) any official's act. The only exception to the said rule is, when the gratification is so trivial that no interference for corruption could in fairness be drawn on a particular facts situation. The court has no such legal compulsion to presume".
72. In the present case, the accused has not led any defence evidence to prove that the amount received by him was legally due to him other- wise. Hence, I am not inclined to accept the arguments advanced by Ld. Defence counsel that accused had no motive to demand or accept the il- legal gratification from the complainant.
73. Ld. Defence counsel has further argued that the prosecution has failed to refute the statement u/s 313 Cr.P.C of the accused. The accused had raised the plea of false implication and had given responses which showed that he had been falsely implicated and his version was probable and plausible but no rebuttal to the same was given on the part of prose- cution and hence, the accused deserves acquittal. Ld. Defence counsel has also placed reliance on the judgment of Parminder Kaur @ P.P. CC No. 370/2019 CBI Vs. Ram Karan Page 85 of 88 Kaur@ Soni Vs State of Punjab (supra) wherein Hon'ble Supreme Court in para 21 and 22 held that "any alternate version of events or interpre- tation proffered by the accused must be carefully analyzed and consid- ered by the Trial court in compliance with the mandate of Section 313 (4) Cr.P.C. Failure of the Trial Court to fairly apply its mind and con- sider the defence, could endanger the conviction itself. Unlike the prose- cution which needs to prove its case beyond reasonable doubts, the ac- cused merely needs to create reasonable doubts or prove their alterna- tive version by mere preponderance of probabilities. Once a plausible version has been put forth in the defence at the Section 313 Cr.P.C exam- ination stage, it is for the prosecution to negate such defence plea."
74. Ld. Sr. PP has argued that the statement of the accused u/s 313 Cr.P.C would show that the accused has not given any alternate version or any plausible defence. He has argued that the accused has merely de- nied the incriminating evidence put to him. He has only taken a defence that he was the habitual smoker and used to go out of DDA office to smoke and he was falsely implicated by the complainant who had ani- mosity towards him specifically and towards officials of DDA in general due to delay on the part of DDA officials in completing the formalities. It was argued that defence taken by the accused was after thought as no such suggestion was given to the complainant or any other witness dur- ing their cross examination that accused was a habitual smoker and used to go out of the DDA office to smoke or that complainant had animosity towards him specifically and towards DDA in general.
75. Perusal of the statement of accused recorded u/s 313 Cr.P.C would CC No. 370/2019 CBI Vs. Ram Karan Page 86 of 88 show that accused has generally denied the incriminating evidence put to him. Although, he has taken the plea of false implication by the com- plainant due to animosity but the same appears to be highly improbable and merely an after thought for the reason that no such defence has been taken by the accused during the cross examination of the prosecution witnesses. No suggestion has been put to either the complainant or other witnesses regarding the defence taken in the examination u/s 313 Cr.P.C. Not only this, accused has neither examined any witness in his defence nor he has dared to appear in the witness box and depose on oath regard- ing the defence taken by him. Hence, the defence taken by the accused is liable to be rejected as an after thought.
76. The judgment of Parminder Kaur @ P.P. Kaur@ Soni Vs State of Punjab (supra) is also of no avail to the accused as the same is based on entirely different facts. The accused in the said case had examined his witnesses in defence whereas in the present case accused has failed to examine either himself or any witness in his defence. The version given by him in his statement u/s 313 Cr.P.C also does not appear to be either plausible or reasonable and rather the same seems to be an after thought attempt to save his skin. Hence, in my considered opinion accused has failed to give any alternative version or plausible defence which could be relied upon by this court.
CONCLUSION
77. In view of the aforesaid discussions, I am of the considered opin- ion that prosecution has succeed in proving the charges against the ac- cused beyond reasonable doubts. Accordingly, the accused is convicted CC No. 370/2019 CBI Vs. Ram Karan Page 87 of 88 for the charge offence u/s 7 of PC Act and Section 13 (2) r/w Section 13 (1) (d) of PC Act, 1988. Digitally signed by ANIL ANIL KUMAR KUMAR SISODIA Date: 2022.04.21 SISODIA 15:03:55 +0530 Announced in the open court (ANIL KUMAR SISODIA) On 21st April, 2022 Special Judge (PC Act) (CBI)-07 Rouse Avenue Courts: New Delhi CC No. 370/2019 CBI Vs. Ram Karan Page 88 of 88